Saturday, March 31, 2007

Christine Hurt on Jennifer Walker Elrod: On Thursday, Jennifer Walker Elrod was nominated to an open seat on the Fifth Circuit. Over at the Conglomerate, Christine Hurt comments:
Jennifer was a great role model to me when I became a working mother, having preceded me in that noble profession by a year or so. . . . I am posting two photos of her: her professional photo and a photo of her holding my son at 8 months. (Wasn't he a bruiser?)
You can see the post and the picture here.

Open Thread: What's on your mind?

Institute for Justice on Campaign-Finance Laws:

The Institute for Justice has a new study on state campaign-finance laws that focuses on the impact of state campaign-finance laws and especially the impact of these laws on grass-roots activism, such as on ballot initiatives. I'm not an expert on the constitutional questions this may raise, but from a policy perspective it seems to me that these laws are quite overbroad in the way it applies to at least some sorts of grass-roots activity and that in those situations the laws impose serious costs on ordinary citizens with little conceivable benefit.

The study is here.

Steve Simpson of IJ has an NRO column describing their poll findings here:

All 24 states that permit citizen initiatives have similar regulations. The driving force behind such laws is the idea of “disclosure” — that groups who favor or oppose a ballot issue should be required to reveal information about their donors and activities to the government and the public. To proponents, the idea seems a harmless way to ensure an informed electorate.

Not surprisingly, most people agree. The Institute for Justice polled more than 2,000 citizens in six states with ballot issue elections, and found that people overwhelmingly agree with the idea of disclosure.

But when people are faced with the reality of disclosure, their support turns to opposition. Fifty-six percent of those polled oppose having to reveal their name, address and contribution amount, and fully 71 percent oppose being forced to reveal their employer’s name. Moreover, most respondents say they would likely “think twice” before making a contribution if it means revealing personal information to the government.

In other words, citizens themselves admit disclosure laws have a chilling effect on their free-speech rights, making them less likely to exercise those rights by contributing to a cause they believe in.

For more on the grass-roots neighborhood activists described in the column, see here. IJ took over their defense after they had previoulsy hired their own lawyer to defend them in the case.


District Court Voids Bush Forest Service Rules:

Yesterday, Judge Phyllis Hamilton of the U.S. District Court for the Northern District of California struck down the Bush Administration's forest management reforms for failing to conduct adequate analyses of the new rules' environmental impacts under the National Environmental Policy Act. Judge Hamilton also found that the Forest Service did not adequately address the reforms' potential impact on endangered species, as required under the Endangered Species Act. The NYT story linked above has some initial reactions to the decision:

Tim Preso, a lawyer who argued the case for the environmental group Earthjustice, said Friday, “Basically, the importance of this decision is that the Bush administration had been trying to take all mandatory environmental protections out of forest planning process and this decision puts them back in.” . . .

Chris West of the American Forest Resource Council, a group based in Portland, Ore., that represents timber interests, said: “The court order is requiring analysis when not a grain of sand or a single hair on a critter is being moved. And we are going to spend millions of dollars doing it.”

“It’s bureaucracy for bureaucracy’s sake,” Mr. West said.

The decision in Citizens for Better Forestry v. U.S. Department of Agriculture is available here. Earthjustice represented the environmental plaintiffs, and their press release is here. The Bush Administration has not yet decided whether it will appeal.


Friday, March 30, 2007

Enter Thompson, Exit "Law & Order"?

Speculation is increasing that former Republican Senator Fred Thompson will enter the presidential race. Some think his name recognition and star quality could vault him into the top tier of presidential contenders. He also has the support of many intelligent conservatives in the blogosphere, such as Professor Bainbridge.

One potential consequence of a Thompson campaign could be the blackout of "Law & Order" episodes in which Thompson appears. As the Washington Post reports:

Federal campaign law requires broadcasters to give all candidates equal time on the airwaves. That rule applies to entertainment programs like "Law & Order," meaning stations which run the show would be required to give other GOP candidates a like amount of prime time television exposure.

With as many as a dozen or more Republican candidates competing for the nomination, that would be prohibitively expensive.

"As a practical matter, [the television stations] would in all likelihood have to pull all of the Fred Thompson shows for the duration of his candidacy," said Andrew Jay Schwartzman, president of the Media Access Project.

This could be a big deal for cable networks such as TNT that broadcast several "Law & Order" episodes every day.

An interesting twist, however, is that the FCC's "equal time" provisions have never been applied to cable networks, though cable networks typically comply "voluntarily." This leads the Post story to speculate whether a Thompson campaign could provoke a legal challenge to the application of the rule to entertainment programming on cable TV.


Suppression Remedies and Tribal Police Searches: A California state appellate court just issued a decision on a really fascinating issue: If tribal police on an Indian reservation conduct a unlawful search of a visitor to the reservation, are the fruits of the search suppressed in a subsequent state court prosecution? The Fourth Amendment generally does not apply to tribal governments, but in 1968 Congress passed a statutory form of the Bill of Rights that does apply to tribes. The Indian Civil Rights Act, 25 U.S.C. § 1302, largely replicates the various constitutional protections for individual rights. Section 1302(2) covers the Fourth Amendment:
No Indian tribe in exercising powers of self-government shall . . . violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.
  The question is, does that text incorporate all of the Fourth Amendment, and in particular the suppression remedy? Apparently no court has squarely and comprehensively addressed this issue until this week.

  In People v. Ramirez, handed down on Wednesday, tribal officers at a casino on an Indian reservation searched a car without probable cause and found drugs inside. The owner of the car was prosecuted in state court and moved to suppress the drugs. The California court's conclusion: the Indian Civil Rights Act does include a suppression remedy for violations.

  The court relied on the notion that when Congress uses common law terms, it should be assumed to have incorporated the common law. The court concluded that the Fourth Amendment was basically common law, and that at the time Congress passed the law the Fourth Amendment was understood to have had a strong exclusionary rule. Congress passed the Indian Civil Rights Act in 1968, more than 50 years after recognizing a suppression remedy for violations of the Fourth Amendment at the federal level and 6 years after expanding it to the states. The court then concluded that the existing balancing test to determine the scope of the suppression remedy favors a suppression remedy here: the suppresson remedy is needed to deter tribal officers from abusing the Fourth Amendment-style right.

  It's always interesting when Congress enacts a statute that tracks constitutional language. It's generally understood that Congress can incorporate constitutional rules by tracking constitutional language, but exactly which rules are incorporated can be unclear. Do all of the rules apply, or only some? And if only some, which ones? And if judicial interpretations of the Constitution change, does the meaning of the staute follow the substantive law that Congress "intended" to adopt at the time? Or does the meaning of the statute change instantaneously as new constitutional decisions are handed down? Great questions.

  I think the California court probably reached the right result in this case, although its reasoning seems convoluted. Looking at the Act as a whole, it's pretty clear that Congress intended to incorporate all of the different constitutional protections. The absence of any specific language on remedies or scope suggests it was meant to be a wholesale adoption. I can't think of a constitutional reason why Congress couldn't do that, so I would think it's permitted and the most natural reading of the statute.

  That's my gut sense, at least; I'd never heard of this Act until reading the Ramirez decision, so I'm certainly open to learning more. Thanks to for the link.

High School Students Sue Anti-Plagiarism Site for Copyright Infringement (and Thirteenth Amendment Violation):

The Thirteenth Amendment argument is basically frivolous. Still, the copyright infringement argument is interesting, though I think ultimately a loser. is a commercial service that aims to help educators catch plagiarism in student papers. Schools require that student papers be submitted to the site, which (1) checks each student paper against its database, and (2) adds each student paper to its database so that future papers can be checked against it. I take it that the database already contains papers from commercial term paper mills, encyclopedia entries, and the like; but adding student papers helps spot students who are copying from classmates, or from friends at other schools, as well as students who are copying from publicly available sources.

But, the high school student plaintiffs say, step 2 violates our copyright: You folks are making money by copying our papers onto your servers. The consent you get from us is inadequate because we are coerced to give it (especially plausible, I take it, when the students are students at public high schools, and when they are within the compulsory school attendance age range). And your use is not fair use, chiefly because it's commercial. (Here's's legal analysis, which argues that the use is indeed fair.)'s strongest fair use argument (which would be needed if the court concludes that the student did not voluntarily consent to the use of their works) is that though their use is commercial, it is

  1. transformative — it copies the papers not to use them as papers (as opposed to, say, a Napster user, who copies a song to play it as a song), but rather to use them to check other papers for plagiarism --

  2. is in aid of others' nonprofit educational mission, and

  3. does not interfere with the students' market for their own works, since the students' works are worthless, and in any event if they are worth something (say, because the students can sell them as newspaper op-eds or articles in literary magazines), Turnitin's archiving of the papers wouldn't interfere with that value.

The students' strongest response would essentially be that if Turnitin is making money from the students' works, the students are entitled to a share of that, and Turnitin's using the works for free interferes with the students' ability to license their papers to Turnitin itself. The most familiar analogy here would be if Steven Spielberg decides to make a movie out of your novel. It may well be that the movie won't interfere with the value of your novel — it may even increase your sales — but his making the movie without paying you interferes with your right to license movie rights to the novel. (Some condemn this as circular reasoning, but I don't think that's quite right, and in any event it is precisely the reasoning that lets authors profit from selling movie rights to their books, and that bars moviemakers from just using the books for free and claiming fair use.) If anything, the students would say, our case is even stronger because our works are unpublished, and the unpublished status of a work is generally seen as cutting in favor of the work's owner and against the fair use claims of the user.

I'm pretty sure Turnitin would and should win, because (1) the value of the licensing rights in their papers would in any case be next to nil, (2) Turnitin's use is transformative — in the sense that it uses the original to make something that's very different (much as a parody or a photo search engine that presents thumbnails of others' photos is transformative, though not quite in the same way) — and therefore is not within the authors' legitimate licensing rights (cf. the Supreme Court's holding that "there is no protectible derivative market for criticism"), and (3) the unpublished status of plaintiff's work should only matter when the defendant is trying to publish the work (or a version of the work), which it isn't doing. Still, it's an interesting little copyright question.

Related Posts (on one page):

  1. High School Students' Copyright Infringement Lawsuit Against Anti-Plagiarism Site Rejected:
  2. High School Students' Copyright Lawsuit Against Anti-Plagiarism Site Rejected:
  3. High School Students Sue Anti-Plagiarism Site for Copyright Infringement (and Thirteenth Amendment Violation):

Editing Tip for Law Students

that I just got from Jonathan Todres, who teaches in the NYU legal writing program: When you're editing someone else's work -- for instance, if you're a student who's required to edit a classmate's paper, or a law review editor editing a faculty member's work -- ask yourself, "What have I learned about my own paper from editing this other paper?"

As with all attempts to see the flaws in one's own work, this isn't easy to do well. But it's good to try. For instance, if you see some arguments that were meant to be rhetorically flowery but come across to the reader (you) as mere bloviation, ask yourself: Is there similar rhetoric in my article that I like but other readers may be turned off by? If the sarcasm in the article you're reading comes across as stridency or excessive combativeness, ask yourself whether your work suffers from the same problem. If you're seeing lots of redundancy or needless abstraction, look over your own work with an eye towards finding the same problems.


More Birthday Law:

Well it's only birthday law in the sense that it has to do with my birthday, but, hey, it's my blog. The law (well, former law): Leap year day and the day before it are one day. (True, at the time leap year day wasn't necessarily my own February 29, but the law remained in effect into the era of the February 29 convention.) Here's the scoop, from the Australian Lex Scripta site:

By a Statute of Henry III, entitled de Anno et die Bissextili, it was provided that, in a leap year, the bissextile day "and the Day next going before, shall be accounted for one Day". The rational compulsion behind this legislative fiction has been lost in the mists of time. Indeed, it is not even certain when it was enacted: some references assign to it the regnal year 21 Henry III (that is, 1236), whilst others assign to it the regnal year 40 Henry III (that is, 1256).

In the time of Lord Coke, at least, the fiction of treating the bissextile and the preceding day as a single day was alive and well. In England, the Act of Henry III was not repealed until 1879. In some Australian States, it has also been expressly repealed: for example, in New South Wales in 1969. Where it has not been expressly repealed, the suggestion is that it has no continuing application, perhaps because it was impliedly repealed by the adoption of the Gregorian Calendar in 1751 [the year in which the Act for Regulating the Commencement of the Year and for Correcting the Calendar now in Use was enacted; the Act took effect in 1752 -EV].

The point arose before Burchett J. in Re Clubb; ex parte Clubb v. Westpac Banking Corporation, in which the respondent bank sought to rely on the statute of Henry III to justify its method of charging interest on customers' accounts. The evidence showed that the bank had divided its annual interest rate by 365, and added this amount of interest to the customer's account for each day, producing the result that, in a leap year, the customer was charged an extra day's interest over the agreed annual rate. Not surprisingly, Burchett J. held that this was impermissible ....

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Interesting Comment: A noteworthy comment about the Bush Administration from a profile of Monica Goodling in today's Washington Post:
"The young conservatives who came off the campaign and were new to town with this administration, they've never seen lean times," said a veteran Republican political appointee who declined to be quoted by name saying anything critical of Goodling. "They had no appreciation for what would happen after the Democrats took control and how tough it would be."
  I'm not sure if the issue is "young conservatives" — I tend to think younger staffers are taking their cues from more senior officials — but it is interesting how unprepared the Administration seems to be for the realities of having Congress in the opposing party's hands.

Thursday, March 29, 2007

Who Gets the U.S News Lawyer/Judges Surveys?:

The one completely opaque element of U.S. News's rating of law schools is the "assessment score by lawyers/judges." U.S News doesn't reveal who gets this survey, or who fills it out. Well, I'd like to know, and I'm sure many others would, too.

So, dear reader, do you get this survey? If so, please email me at deliotb at aol dot com. Please tell me whether you are a lawyer or a judge, and whether you hold any particular position in your field that may account for getting the survey (hiring partner, chief judge, and the like). Also please tell me what city you are in. For example: Joe Blow [or pseudonym, if you must], partner and chair of hiring committee at a big firm, Indianapolis. Finally, tell me if you get these surveys annually, occasionally, or only once, and whether you always, sometimes, or never fill it out.

I promise to keep all responses confidential. If I get enough responses to glean anything useful or interesting, I'll report back.

Important Holding on Service Provider / Web Site Operator Immunity from State Intellectual Property Lawsuits:

47 U.S.C. § 230 immunizes Internet Service Providers, Web site operators, and others from being held liable for what their users post. Thus, for instance, if you post something defamatory in the comments, we won't be liable for it to the defamed party, though you would be liable, and though we would be liable for content we ourselves originate.

The statute, though, exempts "intellectual property." That clearly means the provider or operator could be liable for copyright infringement by its users (subject to the separate rules provided by the Digital Milennium Copyright Act, 17 U.S.C. § 512), and likely for federal trademark infringement.

But what about state law rules? The right of publicity (i.e., the right to control certain commercial uses of one's name, likeness, or identity) is a potential example. It's not clear whether it's an intellectual property rule, but if it is treated as an intellectual property rule, could AOL be sued because an AOL user puts up a commercial Web site that infringes a celebrity's right of publicity?

The Ninth Circuit has just held, in today's Perfect10, Inc. v. CCBill LLC that the "intellectual property" exception to the § 230 immunity covers only federal intellectual property claims; state intellectual property claims are preempted. Here's the relevant passage (some paragraph breaks added):

The Communications Decency Act states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider," and expressly preempts any state law to the contrary…. The immunity created by § 230(c)(1) is limited by § 230(e)(2), which requires the court to "construe Section 230(c)(1) in a manner that would neither 'limit or expand any law pertaining to intellectual property.'" As a result, the CDA does not clothe service providers in immunity from "law[s] pertaining to intellectual property."

The CDA does not contain an express definition of "intellectual property," and there are many types of claims in both state and federal law which may -- or may not -- be characterized as "intellectual property" claims. While the scope of federal intellectual property law is relatively well-established, state laws protecting "intellectual property," however defined, are by no means uniform. Such laws may bear various names, provide for varying causes of action and remedies, and have varying purposes and policy goals.

Because material on a website may be viewed across the Internet, and thus in more than one state at a time, permitting the reach of any particular state's definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress's expressed goal of insulating the development of the Internet from the various state-law regimes. See 47 U.S.C. §§ 230(a) and (b); see also Batzel, 333 F.3d at 1027 (noting that "courts construing § 230 have recognized as critical in applying the statute the concern that lawsuits could threaten the 'freedom of speech in the new and burgeoning Internet medium'").

In the absence of a definition from Congress, we construe the term "intellectual property" to mean "federal intellectual property."

A pretty important decision, and to my knowledge the first on the subject (though please correct me if I'm wrong). Many thanks to How Appealing for the pointer.

Related Posts (on one page):

  1. 47 U.S.C. § 230 and State Intellectual Property Rules:
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Beautiful French literature on Liberty and the Right to Arms:

Pierre Lemieux is a French-Canadian professor, libertarian, and master literary stylist. In 2001, he penned "Confessions d’un coureur des bois hors-la-loi" (Confessions of an outlaw woodsman), to protest against the growth of oppressive, intolerant, anti-gun, anti-self defense laws in Canada. (Or as he says, "pretend laws"--an appellation that has been used for the "laws" of Vichy France.)

The book has recently been re-issued in electronic version by "Les Classiques des sciences sociales," which is one of the most important Francophone on-line social science publishers. I finished reading it yesterday, and I recommend it highly.

I have been studying Canadian firearms policy since 1986, so I was apprehensive that book would contain a recitation of various arguments with which I was already very familiar. Au contraire. The book is collection of passionate essays on the spirit of liberty, on the "Redneck of the North" culture of rural Quebec, and on the rising danger of the soft tyranny of the nanny state.

If you can read French at the high intermediate level or better, you will be able to enjoy the book. If you are highly proficient in French, you will especially appreciate Lemieux's beautiful writing--including the first chapter, in which he describes walking around his rural property, carrying his .223 carbine in violation of the pretend law. The best chapter imagines his meeting on Judgment Day with St. Peter, which begins with Lemieux remonstrating St. Peter for addressing him with impertinent informality ("tu").

I read Lemieux in French in the manner that many students used to read Cicero in Latin: to improve my language skills by carefully studying every word and phrase from a master of rhetoric, and to savor the pleasure of a brilliant writer animated by the deepest love of liberty. "Les Classiques" also has several other libertarian books written by Lemieux.


A Subtitle to Live By:

From the cover page of a 1733 edition of The Philosophical Works of Francis Bacon:




Birthday Law:

I learned yesterday, by reading Commonwealth v. Hooks, 2007 WL 901762 (Pa.Super.), 2007 PA Super 85 (Mar. 27), about a common-law rule that surprised me: "[F]or purposes of computing a person's age, one attains the age in question on the day prior to the anniversary of his birthdate." Hooks concluded that Pennsylvania law had largely departed from this rule, but the rule apparently did exist.

I was also struck by the rhetoric of the opinion. First a bit of background about the case: Hooks was sentenced for "aggravated indecent assault on a person less than 16 years of age, statutory sexual assault, and indecent assault"; he had had a sexual encounter (the details are contested) with a girl whom he had just met -- he was a door-to-door vacuum cleaner salesman, and she was a resident of one of the houses he visited -- on the day before her 16th birthday. He claimed it was consensual, she claimed it was not; the jury acquitted him of rape by forcible compulsion, indecent exposure, and sexual assault, but convicted him of statutory sexual assault, aggravated indecent assault with a person less than 16 years of age and indecent assault; he was acquitted of the remaining charges. The only legal question in the appeal had to do with the under-16 charge (which did not require a showing of lack of consent at trial), given the girl's birthday. For those who care about such things, I note that Hooks was 23.

The court had to choose whether to apply the vestiges of the common law rule, or to follow the modern Pennsylvania (and nationwide) trend, under which a person becomes 16 on her 16th birthday, not the day before. Here is what strikes me as the heart of its reasoning:

Pursuant to section 1921, we must look to the occasion and necessity for the statute among other considerations--the mischief to be remedied, the object to be attained, the former law, if any, including other statutes upon the same or similar subjects. This section, perhaps more than any other of the Statutory Construction Act, sharpens the implication that the statute creating the criminal charges under appeal must be construed to provide maximum protection to children 16 and under, maximum interception and assurance of trial for adult perpetrators of child sexual assault, the greatest attainment of protection of society against child sexual predators, and the merging of these efforts and provisions with the juvenile law, Megan's Law, and child pornography and child sexual solicitation laws which have evolved between the enactment of the Juvenile Act in 1903 and the most recent laws protecting children against child predators....

The balance between strict construction of penal statutes and other related statutes, which can be more liberally construed, is exhibited in Iafrate II, supra [a Pennsylvania Supreme Court decision rejecting the common-law rule in a different context]. It is essential that child victims of sexual assault receive the same protection as that provided to juvenile offenders in Iafrate II, as the goal of the statutes subject of our consideration, like the Juvenile Act, is the care and protection of the child....

Long before Iafrate, the Pennsylvania Supreme Court in Commonwealth ex rel. Fisher, 213 Pa. 48, 62 A. 198 (1905), which declared the Juvenile Act to be valid, made clear that children are in a special class. In the Court's Opinion Justice Brown calls attention to the fact that the protecting arm of the act is for all who have not attained 16 years of age, and who may need its protection....

For the proper enforcement of [various] long standing statutes [aimed at protecting children] and more recent ones dealing with the age of minors, such as the statutes considered herein, it is crucial that the common sense anniversary rule be applied.

This common sense application is particularly relevant to section 3121(c) of Pennsylvania's rape statute which specifically categorizes as Rape of a child, sexual intercourse with a complainant who is less than 13 years of age. It is ludicrous to suggest that the legislature of this Commonwealth, who enacted a statute to protect children from sexual aggressors and that is dependent upon the age of the particular victim for its enforcement, intended that for purposes of the statute, child victims would turn 13 the day before their 13th birthdays.

When a common law rule, in effect, would pervert justice and contravene legislative and societal needs, and it is not in the best interests of justice or public policy, a change by the court is mandated....

Now if Hooks indeed raped the girl (or had sex short of intercourse with her against her will), he deserves to be punished. If he had sex with an under-16-year-old girl, applying statutory rape laws also makes perfect sense. And I think the revised -- you turn 16 on your 16th birthday -- rule is more reasonable, because more expected, than the common-law rule, though I also acknowledge there's some cost in shifting from one rule to another, especially when the new rule punishes people for what they may have reasonably thought was allowed under the own rule. (Imagine these were consensual lovers who were waiting until the girl was legal to have sex, and they actually did their research, which led them to the old rule.)

But I don't quite see how all this rhetoric about "pervert[ing] justice," "maximum protection to children 16 and under," and "the greatest attainment of protection of society against child sexual predators" fits with the case in which the debate is about one day. Hooks would have not been punished under the indecent-assault-under-16 law if the incident had happened one day later; everyone agrees with that. The law would not have treated the 16-year-old as being in need of protection against consensual sex (nonconsensual sex is a different matter, but he was charged on that separately, and partly convicted and partly acquitted). How would there be any material loss of "protection of society against child sexual predators" if the court interpreted the law as allowing the 16-year-old-minus-1-day as being capable of consenting just as the 16-year-old is capable? Where would be the "perversion of justice" in such a holding?

One could argue that there may be perversion of justice in changing a rule to a defendant's detriment, when the defendant could have reasonably relied on it (highly unlikely here, but possible in my hypothetical about the lovers who let out their sexual frustrations in doing legal research about when they can lawfully have sex). But -- again focusing on the statutory rape charge at the heart of the case, and not on the charges that required a showing of lack of consent -- it's hard to see perversion of justice in sticking with an old rule that would set the age of consent one day earlier than the majority thinks reasonable.

The dissenting judge, I think, articulated this point right (though I can't speak to his more general point about how the earlier Pennsylvania precedents should be construed) (emphasis added):

The Majority sidesteps the approach utilized in Iafrate because it apparently feels compelled to offer an interpretation that favors to the maximum degree the interests of society in protecting minors even if it means ignoring a fundamental principle of statutory construction within the realm of criminal law [the principle that penal statutes are to be strictly construed in the defendant's favor]. The Majority creates a compelling argument and, while I certainly favor protecting minors, I am unwilling to eschew long established rules of statutory construction to extend the scope of a penal provision a few more hours when it is clear that the length of the protection is essentially an arbitrary choice. In the court of public opinion, Appellant might rightfully be condemned as a "sleazeball" for his actions. In a court of law, however, Appellant is supposed to be deserving of the protections afforded all Americans, one of which compels the strict construction of penal provisions. Instead of adhering to this principle, the Majority utilizes a principle of broad construction.

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[Paul Horwitz (guest-blogging), March 29, 2007 at 10:11am] Trackbacks
Response to Commenters on the Religious Test Clause:

Thanks again for the comments on my discussion of my piece on the Religious Test Clause. Let me offer some responses, divided broadly into comments about history and comments about my broader normative argument in favor of a narrow but deep reading of the Religious Test Clause.

History: First, Jon Rowe, who had many valuable comments, asks a basic question: What was Rhode Island's religious test during the Founding era? Let me quote from Gerard Bradley, whose article I cited in my first post: "Rhode Island, as in many church-state matters, was a special case: the Protestant monopoly there flowed from an exclusion of Catholics and Jews from citizenship, and not, precisely, from political office." Mr. Rowe also makes a series of broader points, arguing that we should draw some significance for our historical reading from the assertion that a number of key framers were not orthodox Christians. I don't dispute that assertion, but would say two things. First, those admittedly central individuals are not the only or even the authoritative figures here. In thinking about the historical understanding of the Clause, their views must be counted alongside the views of those whom they sought to convince — the other framers and the ratifiers of the Constitution. I have no algorithm to apply here in weighting their respective views; but my holistic reading of the history surrounding the debate over the Clause suggests to me, at least, that we should not read the Clause too broadly in light of these standout examples, especially in light of the real historical evils the Clause appeared fairly clearly to address. Second, as Mr. Rowe notes, although unorthodox, those key framers, and certainly many other framers, did not think virtue and character were irrelevant to political office; for most framers and ratifiers, religion (however broadly defined) was certainly a vital aspect of one's character. Finally, another commenter asks why the framers didn't use the word "oath" rather than "test." This is a fair question, but I will answer with the words of another commenter: "Porkchop," who points out that the word "test" did have a fairly clear meaning taken in historical context, and that most religious tests were in fact oath-centered, or otherwise closely related to the imposition of formal requirements of religious belief or conduct for putative office-holders. It is no answer to say, Justice Black-like, "'no test'" means 'no test,'" unless we understand something about the language used, taken in context.

Normative arguments: I got a number of interesting comments on this broader subject. A variety of commenters offered some variation on the view that my reading of the Clause leaves too much that is threatening and worrisome up for grabs: it "would mean there is no bar at all to open and wanton religious discrimination in granting public jobs [more precisely, public offices or trusts]." Another (Mark Field) writes that there is no principled difference between a formal religious test and an individual senator "asking each candidate to express that same sentiment [contained in the formal test] prior to giving 'advice and consent.' The test clause should preclude both, as well as more subtle efforts to circumvent it. The government simply has no business inquiring into religious opinion." Another commenter writes that character can always be a factor in a decision to nominate or affirm, but that "the Founding Fathers were pretty clear on the concept: No religious test, period." In short, a number of commenters think the Clause itself, or broader values we find in the Clause, preclude "government" from considering religion. Remember Prof. Tribe, suggesting that the Clause effectively secularizes the public order.

My general response is to suggest that the Religious Test Clause is revolutionary enough if understood on its own terms, and that the kind of larger "value" it is said to represent, one in which public decisions and debates (including decisions made and positions taken by office-holders) are largely stripped of religious terms, runs beyond what I understand our constitutional "values" to hold with respect to the role of religion in public debate and action. I agree that "government" is officially barred from taking particular official steps in particular areas, including a prohibition against formally erecting religious barriers to office. But I think there is a substantial difference between those formal tests and the possibility of religion playing a "more subtle" role in nominations and confirmations. To disable government from erecting religious barriers to public office is one thing; to say that religion must be presumptively and absolutely irrelevant to considerations of public office, I think, goes too far. Religion may be relevant in the way that a number of commenters were willing to recognize: indirectly, in its effects on how one would conduct oneself in office. But I think it can, for some decision-makers, be relevant in an even more direct way, in the sense that a decision-maker may believe, rightly or wrongly, that a candidate's views and beliefs display a character (or lack of character) that simply does not deserve to occupy a "public trust."

I agree that such a view is rife with potential for abuse. I also believe, however, that the penalties that are to be exacted for such abuse are fundamentally political in nature: and as the Miers example may demonstrate, those political remedies are by no means ineffective. (One commenter suggests that politicians can then simply conceal their religious motivations. Of course they can, under any regime. But information has a way of getting out, and in any event a politician who wants to support or oppose a nominee for religious reasons without saying so may either supply adequate public reasons, or the public reasons she supplies may be found so wanting that a voter can fairly conclude she is really acting for religious reasons and act accordingly. Better, in my view, to be candid about one's religious motives, and to be judged accordingly; but, of course, politicians may have both public and religious reasons for a particular decision, and can always offer both.)

Moreover, despite the potential for abuse, I think the cost of saying that religion is somehow a forbidden ground of discussion or decision for public decision-makers or citizens — and many who raised the Religious Test Clause argument during the recent nominations not only said it applied to politicians, but effectively treated it as disabling religion from entering into broader public debate — is greater than the benefit. It treats religion as the one and only set of values prohibited from entering into debate and decision on momentous public issues, and because so many citizens and officials clearly do think in religious terms about their decisions and will continue to do so under any regime, it robs us of a valuable degree of candor in public debate. Whatever broader values undergird our national understanding, then or now, I don't think they run to this kind of exclusion of religion from public deliberation, discussion, and decision, although obviously this is part of a larger running debate.

To say that religion may sometimes be relevant to public discussion and decision on nominees and other matters, and that the Religious Test Clause doesn't bar the use of religion in this way, although it does bar certain formal barriers to public office, is of course not the end of the story. We are then left to deliberate together about how and when (if ever) religion should enter into the public debate, or into the decisions of public officials. Although I clearly disagree with those who have answered "never," I also think we can invoke religion more or less wisely and carefully, and have said something about what that might entail. Jon Rowe concluded his comment yesterday by saying, "Personally, I'd rather live under a system of 'etiquette' where one's religion or lack thereof — whether one be a fundamentalist Christian or an atheist — is viewed as simply not related to one's fitness for public office." Taken at that broad level of generality, I can sympathize; but it is a short step from that principle to a public square that is denuded of useful, meaningful discussion. It also removes, one should acknowledge, much of what might be shallow and provocative sniping and religious bigotry — but that language, too, is the price of open debate, and knowing of that risk should remind us all the more of our own responsibility to enter into these discussions, and use both our votes and our voices, with some kind of sense of underlying principle and integrity that I've simply labeled "constitutional etiquette." Better, in my view, to have a system of etiquette where we can openly acknowledge and discuss religion, while remembering that it can never be a formal bar to public office — and in which we can add our own voices to the debate in pointing out that the mere labels "fundamentalist Christian" or "atheist" (or "Muslim") are far from descriptively complete, that they say very little about how particular individuals will carry out their offices, and that on such a broad level, they may not even say much about character.

As the always valuable Mr. Rowe commented, my reading of the Religious Test Clause can cut both ways politically. More on that tomorrow, with some concluding remarks on the differing reactions I've received to this article, and what they may suggest.


Wednesday, March 28, 2007

Will the Welfare State Wither Away When it Becomes Unnecessary?

Early Marxists, including Marx himself, believed that at some point after the transition from capitalism to socialism, the state would "wither away" because it would no longer be needed to maintain an egalitarian socialist society. Once the state was no longer necessary, it would disappear. Tyler Cowen advances a somewhat similar theory from a libertarian perspective:

Life without socks would be... "undignified," but no one recommends government provision or even sock vouchers. Relative to income, socks are sufficiently cheap. There is some inequality of socks, but it seems that just about everybody — even the poor — "has enough." We don't even force people to buy socks for their kids.

Might there come a time when health care and education fall under the same rubric? . . .

Of course today's poor aren't rich enough for us to remove government aid. But when will the splendid era of libertarian freedom be possible? Today's poor are much richer than the poor fifty years ago, and the poor of the future are likely to be richer yet. Won't the welfare state, at some point, simply become unnecessary?

Unlike in the case of the Marxists, it's not clear whether Tyler is making a prediction or just a normative statement about the justification of the welfare state in the future (Marx was doing both). If Tyler is predicting the demise of the welfare state as the poor become richer, I think he is wrong, and for the same reason that Marx was wrong about the withering away of the state under socialism. Government power does not disappear merely because it becomes "unnecessary." It can still be used by the politically powerful to benefit themselves at the expense of the politically weak. Orthodox Marxists learned this lesson the hard way when the establishment of a socialist government in the USSR led not to the withering away of the state, but to a vast expansion of government power and of its use to oppress the population for the benefit of a new ruling class.

We see a similar dynamic, though in much less severe form, in the history of the welfare state. Although originally intended to benefit the poor, today's welfare state has gone far beyond that. The vast majority of government-sponsored redistribution goes not to the poor, but to politically powerful interest groups such as the elderly (most of whom are not poor), large agribusinesses (which capture most of the benefits from the massive agricultural subsidies that exist in most developed nations); and of course the mostly affluent beneficiaries of various porkbarrel projects. Social Security (the vast majority of which goes to the nonpoor) alone dwarfs all means-tested programs combined. As I explained in greater detail here, the poor have little political power, and it is therefore not surprising that most programs enacted through the political process don't benefit them, and many actually cause them harm.

If Tyler is just making the normative point that the welfare state will no longer have a justification once even the poor are rich enough to provide for themselves, then I largely agree. But we don't have to wait for that to happen in order to condemn the many redistributive programs whose benefits flow to people who are not poor, and therefore can already provide basic necessities (and much else) for themselves. Even if welfare state redistribution is permissible in cases where it is necessary to aid the genuinely destitute who cannot help themselves (and I agree with Tyler that it is), that principle doesn't even begin to justify the vast majority of the welfare state redistribution that exists in the real world. As Harvard economist Jeffrey Miron points out, we can make huge cuts in the welfare state without touching even a penny of spending that goes to the poor.

UPDATE: I seem to be criticizing Tyler a lot recently (see here and here). So let me point out that I actually agree with his writings about 80 or 90% of the time. To extend the analogy to Marx, my critique of Tyler is similar to the critique of Marx by the "revisionist socialists" who basically agreed with his normative premises, but thought that some of his empirical predictions were wrong. If Tyler is the Marx of George Mason libertarianism, then I'm the Edouard Bernstein. OK, that's probably enough Marxist obscurantism for one post:).


The Bizarro "Ayn Rand School for Tots":

John J. Miller reports on the Hilltop Children's Center's decision to ban Legos.

The teachers themselves have provided a helpful explanation for this. This reads like a joke (its like a Bizarro world "Ayn Rand School for Tots"), but from what I can tell it is quite serious, and is publsihed in "Rethinking Schools Online". The story picks up after the accidental demolition of the class's massive Legotown project and the question of whether to rebuild:

We met as a teaching staff later that day. We saw the decimation of Lego-town as an opportunity to launch a critical evaluation of Legotown and the inequities of private ownership and hierarchical authority on which it was founded. Our intention was to promote a contrasting set of values: collectivity, collaboration, resource-sharing, and full democratic participation. We knew that the examination would have the most impact if it was based in engaged exploration and reflection rather than in lots of talking. We didn't want simply to step in as teachers with a new set of rules about how the children could use Legos, exchanging one set of authoritarian rules with another. Ann suggested removing the Legos from the classroom. This bold decision would demonstrate our discomfort with the issues we saw at play in Legotown. And it posed a challenge to the children: How might we create a "community of fairness" about Legos?

Taking the Legos out of the classroom was both a commitment and a risk. We expected that looking frankly at the issues of power and inequity that had shaped Legotown would hold conflict and discomfort for us all. We teachers talked long and hard about the decision. We shared our own perspectives on issues of private ownership, wealth, and limited resources. One teacher described her childhood experience of growing up without much money and her instinctive critical judgments about people who have wealth and financial ease. Another teacher shared her allegiance to the children who had been on the fringes of Legotown, wanting more resources but not sure how to get them without upsetting the power structure. We knew that our personal experiences and beliefs would shape our decision-making and planning for the children, and we wanted to be as aware as we could about them.

We also discussed our beliefs about our role as teachers in raising political issues with young children. We recognized that children are political beings, actively shaping their social and political understandings of ownership and economic equity — whether we interceded or not. We agreed that we want to take part in shaping the children's understandings from a perspective of social justice. So we decided to take the Legos out of the classroom.

I was relieved to learn that after the students completed their reeducation course they and their comrades were allowed to actually play with the Legos again:

This "practice" round of Lego construction served as a foundation for a full-fledged return of Legos to their front-and-center place in the classroom, but with a new location in the consciousness of the group. In preparation for bringing Legos back, we held several meetings with the children to generate a set of key principles for Lego play. We met with small groups of children over snack or as we walked to and from the park, posing questions like "If you were going to play with Legos, what would be important to you?" "What would be different if we bring the Legos back to the classroom? How could we make it different?" "What could we do if we fall into old habits with the Legos?" From our conversations, several themes emerged.

Collectivity is a good thing:

Personal expression matters:

Shared power is a valued goal:

Moderation and equal access to resources are things to strive for:

As teachers, we were excited by these comments. The children gave voice to the value that collectivity is a solid, energizing way to organize a community — and that it requires power-sharing, equal access to resources, and trust in the other participants. They expressed the need, within collectivity, for personal expression, for being acknowledged as an individual within the group. And finally, they named the deep satisfaction of shared engagement and investment, and the ways in which the participation of many people deepens the experience of membership in community for everyone.

Sounds like we need to put these guys in charge of rebuilding New Orleans!


"What Would the Iraq Redeployment Bills Actually Do, Anyway?": Marty Lederman has this interesting post over at Balkinization.

Goodling "Involved" In Domenici Call: According to the AP, Monica Goodling "was involved in an April Sixth, 2006, phone call between the Justice Department and New Mexico Republican Senator Pete Domenici." (Hat tip: Talking Points Memo) I'm not sure what "involved" means, and unfortunately the AP story doesn't give any details. But if "involved" means either in on the calls or a participant in setting them up, that would seem to be pretty big news: Monica Goodling was the Attorney General's liaison to the White House, and her involvement would make it less likely that Domenici had just picked up the phone one day and made the call entirely on his own. On the other hand, it would certainly help explain her asserting the Fifth Amendment privilege. Stay tuned.

Volume-mates with Orin:

Orin recently announced that his article on Four Models of Fourth Amendment Protection is forthcoming in the Stanford Law Review.

I'm delighted to report that I, too, have accepted a publication offer with Stanford — in my case, for my article on Privatization and the Law and Economics of Political Advocacy. (The link in the previous sentence will take you to the very latest version on SSRN — exactly 25,000 words!) Here, again (for those of you who didn't pay attention when I've posted this before), is the abstract:

A common argument against privatization is that private providers will self-interestedly lobby to increase the size of their market. In this Article, I evaluate this argument, using, as a case study, the argument against prison privatization based on the possibility that the private prison industry will distort the criminal law by advocating for incarceration.

I conclude that there is at present no particular reason to credit this argument. Even without privatization, government agents already lobby for changes in substantive law — in the prison context, for example, public corrections officer unions are active advocates of pro-incarceration policy. Against this background, adding the “extra voice” of the private sector will not necessarily increase either the amount of industry-increasing advocacy or its effectiveness. In fact, privatization may well reduce the industry’s political power: Because advocacy is a “public good” for the industry, as the number of independent actors increases, the dominant actor’s advocacy decreases (since it no longer captures the full benefit of its advocacy) and the other actors free-ride off the dominant actor’s contribution. Under some plausible assumptions, therefore, privatization may actually decrease advocacy, and under different plausible assumptions, the net effect of privatization on advocacy is ambiguous.

The argument that privatization distorts policy by encouraging lobbying is thus unconvincing without a fuller explanation of the mechanics of advocacy.

Those of you who want a technical, economicsy, paper on the topic can check out this one. In the near future, I'll have a series of posts summarizing the argument of this paper.


National Review Calls on Gonzales to Resign: From the editorial:
While we defended [Gonzales] from some of the outlandish charges made during his confirmation hearings, we have never seen evidence that he has a fine legal mind, good judgment, or managerial ability. Nor has his conduct at any stage of this controversy gained our confidence.

What little credibility Gonzales had is gone. All that now keeps him in office, save the friendship of the president, is the conviction of many Republicans that removing him would embolden the Democrats. It is an overblown fear. The Democrats will pursue scandals, real or invented, whether or not Gonzales stays. But they have an especially inviting target in Gonzales. He cannot defend the administration and its policies even when they deserve defense. Alberto Gonzales should resign. The Justice Department needs a fresh start.

Blankenhorn and the marriage radicals:

Yesterday I addressed part of David Blankenhorn’s argument, relying on international survey data, that support for same-sex marriage is part of a “cluster” of “mutually reinforcing” beliefs that are hostile to traditional marriage. “These things do go together,” he writes.

I responded by saying that a correlation between the recognition of same-sex marriage in a country and the views of its people on other marital and family issues (1) could not show that same-sex marriage in that country caused, or even contributed to, those other views, and (2) did not tell us anything very important about whether, on balance, SSM is a good policy idea. SSM might be a small part of a project of reinstitutionalizing marriage – despite what those who hold a cluster of non-traditional beliefs about marriage may hope for.

I don’t deny that people who hold non-traditionalist views about family life and marriage also tend to be more supportive of SSM; I simply maintain that the existence of this cluster in some people is not very important in the public policy argument about SSM. By itself, it tells us nothing about what the likely or necessary effects of SSM will be. It would similarly not be very useful in the debate over SSM to note the existence of other correlations more friendly to the case for SSM, like the fact that countries recognizing SSM tend to be wealthier, more educated, more democratic, healthier, have lower infant mortality rates, longer life expectancy, and are more devoted to women’s equality, than countries that refuse to recognize gay relationships.

The second half of Blankenhorn’s argument that supporting SSM and opposing marriage “go together” boils down to this:

[P]eople who have devoted much of their professional lives to attacking marriage as an institution almost always favor gay marriage. . . . Inevitably, the pattern discernible in the [international survey data] statistics is borne out in the statements of the activists. Many of those who most vigorously champion same-sex marriage say that they do so precisely in the hope of dethroning once and for all the traditional "conjugal institution."

In a move that has become common among anti-gay marriage intellectuals, Blankenhorn then quotes three academics/activists who do indeed see SSM as a way to begin dismantling traditional marriage and undermining many of the values associated with it. There are many more such quotes that could be pulled from the pages of law reviews, newspaper op-eds, dissertations, college term papers, and the like. They’ve been gathered with great gusto by Maggie Gallagher and especially Stanley Kurtz, who regards them as the “confessions” of the grand project to subvert American civilization. (Remember the “Beyond Marriage” manifesto that excited Kurtz so much last summer? Not many people do.)

I do not deny that there are supporters of SSM who think this way, including some very smart and prominent academics. I wince when I read some of what they write; in part because I know these ideas will be used by good writers like Blankenhorn to frighten people about gay marriage, in part because I just think they’re wrong normatively and in their predictions about the likely effects of SSM on marriage. But mostly I wince because if I believed they were correct that SSM would undermine marriage as an institution, if I thought there was any credible evidence that this was a reasonable possibility, I would oppose SSM – regardless of whatever help it might give gay Americans and the estimated 1-2 million children they are raising right now in this country.

So I wince, but I am not persuaded that either correlations from international surveys or statements from marriage radicals show that “gay marriage clearly presupposes and reinforces deinstitutionalization [of marriage].”

First, as Blankenhorn well knows, it is not necessary to the cause of gay marriage to embrace the “cluster” of beliefs he and I would both regard as generally anti-marriage. One could, as many conservative supporters of gay marriage do, both support SSM and believe that (1) marriage is not an outdated institution, (2) divorce should be made harder to get, (3) adultery should be discouraged and perhaps penalized in some fashion, (4) it is better for children to be born within marriage than without, (5) it is better for a committed couple to get married than to stay unmarried, (6) it is better for children to be raised by two parents rather than one, and so on.

Second, a policy view is not necessarily bad because some (or many) of the people who support it also support bad things and see those other bad things as part of a grand project to do bad. Some (many?) opponents of gay marriage also oppose the use of contraceptives (even by married couples), would recriminalize sodomy, would end sex education in the schools, and would re-subordinate wives to their husbands. And they see all of this – including their opposition to SSM – as part of a grand project to make America once and for all “One Christian Nation” where the “separation of church and state” is always accompanied by scare quotes and is debunked by selective quotes from George Washington. These are, one might say, a “cluster” of “mutually reinforcing” beliefs that “do go together.” But it would be unfair to tar opponents of SSM with all of these causes, or to dismiss the case against SSM because opposing SSM might tend to advance some of them.

Third, in citing and quoting these pro-SSM marriage radicals, Blankenhorn and other anti-gay marriage writers ignore an entire segment of the large debate on the left about whether marriage is a worthwhile cause for gays. While there are many writers on the left who support SSM because they believe (erroneously, I think) that it will deinstitutionalize marriage, there are many other writers on the left who oppose (or are at least anxious about) SSM because they think it will reinstitutionalize it. Let me give a just a few examples that Blankenhorn, Gallagher, and Kurtz have so far missed.

Paula Ettelbrick, in a very influential and widely quoted essay written at the outset of the intra-community debate over SSM, worried that SSM would reassert the primacy of marriage, enervate the movement for alternatives to marriage, and traditionalize gay life and culture:

By looking to our sameness and de-emphasizing our differences, we don’t even place ourselves in a position of power that would allow us to transform marriage from an institution that emphasizes property and state regulation of relationships to an institution which recognizes one of many types of valid and respected relationships. . . . [Pursuing the legalization of same-sex marriage] would be perpetuating the elevation of married relationships and of ‘couples’ in general, and further eclipsing other relationships of choice. . . .

Ironically, gay marriage, instead of liberating gay sex and sexuality, would further outlaw all gay and lesbian sex which is not performed in a marital context. Just as sexually active non-married women face stigma and double standards around sex and sexual activity, so too would non-married gay people. The only legitimate gay sex would be that which is cloaked in and regulated by marriage. . . . Lesbians and gay men who did not seek the state’s stamp of approval would clearly face increased sexual oppression. . . .

If the laws change tomorrow and lesbians and gay men were allowed to marry, where would we find the incentive to continue the progressive movement we have started that is pushing for societal and legal recognition of all kinds of family relationships? To create other options and alternatives?

Since When is Marriage a Path to Liberation?, Out/Look, Fall 1989, at 8-12 (emphasis added).

Professor Michael Warner of Rutgers argues in his book, The Trouble With Normal (1999), that SSM would augment the normative status of marriage, reinforce conservative trends toward reinstitutionalizing it, and thus be “regressive” (all of which for him would be bad things):

[T]he effect [of gay marriage] would be to reinforce the material privileges and cultural normativity of marriage. . . . Buying commodities sustains the culture of commodities whether the buyers like it or not. That is the power of a system. Just so, marrying consolidates and sustains the normativity of marriage. (P. 109) (emphasis added)

The conservative trend of shoring up this privilege [in marriage] is mirrored, wittingly or unwittingly, by the decision of U.S. advocates of gay marriage to subordinate an entire bundle of entitlements to the status of marriage. (P. 122) (emphasis added)

In respect to the family, real estate, and employment, for example, the state has taken many small steps toward recognizing households and relationships that it once did not. . . . But the drive for gay marriage [] threatens to reverse the trend [toward progressive change], because it restores the constitutive role of state certification. Gay couples don’t just want households, benefits, and recognition. They want marriage licenses. They want the stipulative language of law rewritten and then enforced. (P. 125) (emphasis added)

The definition of marriage, from the state’s special role in it to the culture of romantic love – already includes so many layers of history, and so many norms, that gay marriage is not likely to alter it fundamentally, and any changes that it does bring may well be regressive. (P. 129) (emphasis added)

As for the hopes of pro-SSM marriage radicals (like those Blankenhorn quotes) that gay marriage would somehow radicalize marriage, Warner counters that “It seems rather much to expect that gay people would transform the institution of marriage by simply marrying.”

Many other activists and intellectuals have written a stream of editorials and position papers over the past two decades expressing a similar “assimilation anxiety” (William Eskridge’s phrase) about SSM. Here are just a few:

“[Same-sex] Marriage is an attempt to limit the multiplicity of relationships and the complexities of coupling in the lesbian experience.” Ruthann Robson & S.E.Valentine, Lov(hers): Lesbians as Intimate Partners and Lesbian Legal Theory, 63 Temp. L. Q. 511, 540 (1990).

“[I]n seeking to replicate marriage clause for clause and sacrament for sacrament, reformers may stall the achievement of real sexual freedom and social equality for everyone. . . . [M]arriage – forget the gay for a moment – is intrinsically conservative.... Assimilating another ‘virtually normal’ constituency, namely monogamous, long-term homosexual couples, marriage pushes the queerer queers of all sexual persuasions – drag queens, club crawlers, polyamorists, even ordinary single mothers or teenage lovers – further to the margins.” Judith Levine, Stop the Wedding!, Village Voice, July 23-29, 2003.

“As an old-time gay liberationist, I find the frenzy around marriage organizing exciting, but depressing. . . . Securing the right to marry . . . will not change the world. Heck, it won’t even change marriage.” Michael Bronski, “Over the Rainbow,” Boston Phoenix, August 1-7, 2003.

“But the simple fact remains that the fight for marriage equality is at its essence not a progressive fight, but rather a deeply conservative one that seeks to maintain the social norm of the two-partnered relationship – with or without children – as more valuable than any other relational configuration. While this may make a great deal of sense to conservatives . . . it is clear that this paradigm simply leaves the basic needs of many people out of the equation. In the case of same-sex marriage the fight for equality bears little resemblance to a progressive fight for the betterment of all people.” Michael Bronski, “Altar ego,” Boston Phoenix, July 16-22, 2004.

So, David Blankenhorn, I see your three marriage radicals and raise you three!

Seriously, here's another "cluster" of beliefs to add to the mix: gay marriage will enhance the primacy of marriage, take the wind out of the sails of the "families we choose" movement, cut off support for the creation of marriage alternatives (like domestic partnerships and civil unions), de-radicalize gay culture, gut the movement for sexual liberation, and reinforce recent conservative trends in family law. So say what we might roughly call the anti-SSM marriage radicals.

These anti-assimilationist writers (some of whom have actually opposed SSM and some of whom, to be fair, are just very uncomfortable about it) have not gotten as much attention in the press as other writers because they greatly complicate an already complex debate. And indeed it’s fair to say they have kept themselves fairly quiet for fear that their concerns would be seen as undermining gay equality and thwarting gay marriage, a cause that has broad support among gays. They don’t want to be seen as opposing benefits for gay people (which in fact they do not oppose).

But these anti-SSM marriage radicals comprise a significant perspective among what I would call “queer” activists, those who observe that the gay movement is pursuing traditionalist causes in traditionalist ways, who think it is endangering sexual liberation, and who fear it is making gay people just like straight people (who are, by implication, all boring, uncultured philistines who couple up, vote Republican, and live in the suburbs). And they think these are bad things.

The point is not to argue that any of these writers are correct that gay marriage will have the significant reinstitutionalizing effect they think it will have. I think both the anti-SSM marriage radicals and the pro-SSM marriage radicals Blankenhorn cites are far too taken with the transformative power of adding an additional increment of 3% or so to existing marriages in the country. So are anti-gay marriage activists generally. I think all of them – including Blankenhorn – are mistaken if they imagine that straight couples take cues from gay couples in structuring their lives and relationships, if they think straight couples may stop having children, or if they predict straight couples will be more likely to have babies outside of marriage because gay couples are now having and raising their children within it.

The point is that both support for and opposition to SSM well up from a variety of complex ideas, fears, hopes, emotions, world-views, motives, and underlying theories. The debate will not be resolved by dueling quotes from marriage radicals. SSM will have the effects it has – good or bad – regardless of what marriage radicals with one or another “cluster” of beliefs hope it will have.

I should add that I have begun reading Blankenhorn’s book, The Future of Marriage. So far, I find it lively, engaging, subtle, interesting, happily free of jargon, and deeply wrong. It is probably the best single book yet written opposing gay marriage.


The Equal Rights Amendment

has been reintroduced. My sense is that the public, even in relatively conservative states, is much more open to the core principle of the government's generally not discriminating based on sex than it was back when the ERA stalled a couple of decades ago.

On the other hand, I suspect that there'd be much less of a sense of need, given that the Supreme Court's sex equality jurisprudence is now itself decades old, and pretty clearly not going anywhere. The formal test is that sex classifications are constitutional only if the government shows an "exceedingly persuasive" justification, which consists of showing "at least that the [challenged] classification serves 'important governmental objectives and that the discriminatory means employed' are 'substantially related to the achievement of those objectives,'" and that the justification "not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." In practice, the test is very hard to meet, so it's hard to point to many sex classifications that are now constitutional but that the ERA would clearly or even likely ban.

What's more, those current sex classifications that are most vulnerable are also ones that many people -- including ones who are far from antifeminist -- may have qualms about invalidating:

1. Limits on Women in Combat: It's generally assumed that the Court would uphold such limits under the current "intermediate scrutiny" test, possibly on the theory that allowing women in combat would pose extremely high risk that captured women will be raped, and that this will not only hurt the women but lead to undue pressure not to surrender, or to launch even very risky rescues. Whether or not this theory is clearly correct, I expect that the Court would defer to the political branches' judgments on this score, even if the limits on women in combat are tightened back to what they were some years ago. Would most ERA backers support constitutionally invalidating these limits, as the ERA may well do, given its categorical language?

2. Sex-Based Affirmative Action Programs: Such programs are in many situations constitutional under the Court's current caselaw. But they would be clearly forbidden by the text of the ERA, "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." And my guess is that the current Court's relatively strong focus on text, coupled with its relative hostility to affirmative action programs (compared to the views of the 1970s and early 1980s Court), would lead it to read the ERA as outlawing legal preferences either for women or men, whether or not the preferences are billed as "remedial."

3. Exclusion of Boys from Girls' Sports Teams: This too is generally seen as constitutional, and I suspect it's even more popular than affirmative action in other contexts. Yet the flat language of the ERA would likely ban it.

4. Limitation of Marriage to Opposite-Sex Couples: Many supporters of same-sex marriage, including those who challenge the opposite-sex-only rule as unconstitutional, argue that the opposite-sex-only rule discriminates based on sex. Some (though not most) state judges that have considered the question have indeed concluded that state constitutional ERA provisions mandate sex-blind marriage laws. It seems quite plausible (though not certain) that enactment of the ERA would increase the likelihood that courts would indeed mandate recognition of same-sex marriages. The arguments that the ERA would lead to such a result can no longer be dismissed, as it once was, as a "hysterical" "emotional scare tactic" "canards."

So it's not quite clear to me what will likely happen given all this (and given the other objections that might be raised, such as the perennial but nontrivial questions related to single-sex locker rooms and the like). Nor is it clear to me what people should do if they believe -- as I do -- that the government generally shouldn't discriminate based on sex, but that some narrow exceptions are proper.

On the one hand, enacting the ERA will cement the broad antidiscrimination principle, and perhaps defeating it might in some measure undermine the principle, among some members of the public or even among some judges; and it's possible that judges will carve out some sensible exceptions from the ERA's flat ban if the ERA is enacted. On the other, it seems highly likely that the constitutional nondiscrimination rule is here to stay, and maybe it's better for judges to continue developing exceptions from this rule when it's basically a judicially developed interpretation of the Equal Protection Clause, rather than for judges to create exceptions from a categorical guarantee.

My preference would be for an ERA that has explicit exceptions for the few areas where exceptions seem necessary, but I doubt that this is a politically viable option. The question then is which is better -- the status quo, under which there is a broad but not securely textually anchored constitutional prohibition of most forms of sex discrimination, or an ERA that expressly bars sex discrimination but goes literally further than I think it should. My sense is that the status quo is probably good enough, because it seems so solidly entrenched; but it's not an open-and-shut matter, it seems to me.

Thanks to Bob Krumm for the pointer.


Those Must Be Cheap Junkets:

Community Rights Counsel continues to attack on privately funded judicial seminars. In this article, CRC calls George Mason University's Law & Economics Center an "ExxonMobil-funded junketing organization." According to CRC executive director Douglas Kendall, ExxonMobil contributions "pays for a lot of judicial junkets," Kendall says. The evidence for this accusation? ExxonMobil gave the LEC $215,000 -- between 1998 and 2005. $215,000 is a nice chunk of change, but it amounts to less than $27,000 per year over the period in question. If that's really enough to buy off the LEC, they must come awfully cheap.

For my prior posts on CRC's critiques of privately funded judicial seminars, see here and here.


[Paul Horwitz (guest-blogging), March 28, 2007 at 10:23am] Trackbacks
The Constitutional Etiquette of Religion in Judicial Nominations:

I've been very grateful for the comments so far on my posts on my paper discussing the Religious Test Clause and judicial nominations. They've been very thoughtful and useful. (I'd like to hear from more of you. Perhaps I should write about the Test Clause and the Second Amendment!) I'll have much more to say about them tomorrow.

So far I've offered a "narrow but deep" interpretation of the Religious Test Clause, on both descriptive and normative grounds. My conclusion has been that, "[h]owever treacherous the waters we must navigate when we invoke religion in the course of judicial nominations, the Religious Test Clause offers us no beacon." With the Constitution put to one side, so to speak, today I want to turn to the task of "crafting non-constitutional rules -- albeit rules that are crafted in the shadow of the Constitution -- that might guide and constrain the conduct of public dialogue on religion in the context of nominations." Borrowing a term from Alan Brownstein, I call this "constitutional etiquette."

Such a project has at least two related problems. First, such suggestions tend to be a little loosey-goosey: we can come up with reasonable standards, but they are likely to be vague and there will naturally be disagreement both on the standards and on their application. Second, they may be a little idealistic. Of course I don't believe everyone will follow these standards in every case, and I'm not sure they always should. Sometimes debate should be uninhibited, robust, and wide-open, and we shouldn't expect every public dialogue to be as well-reasoned and careful as, say, a university faculty meeting. (For those not currently in the academy or who are not Canadian, that would be an example of wry humor.) But this part of the project is important to me. Many public debates at the intersection between law and politics seem to me to start in medias res. Before we can usefully hold such discussions, we ought first to think about the standards guiding that debate, so that we can thoughtfully evaluate not only the merits of the arguments made by public actors, but the consistency and integrity of those arguments. If, as I believe, the Constitution resolves relatively few issues and leaves primary responsibility for many questions in the hands of We the People, then all conscientious citizens -- voters and lawmakers alike -- can fulfill that role best if we have benchmarks against which to evaluate our own conduct and that of other citizens, including public officials. So here's one stab at some standards.

In my paper, I offer five standards that might guide public debate in this area. Not surprisingly, they are potentially of wider application than the judicial nomination dialogue alone, and may well be broader than the question of religion in politics itself. First, we may ask, does the dialogue meet standards of transparency. If religion is to factor into public officials' deliberations on nominations, they ought to be willing to say so publicly, offering the public a chance to mete out whatever political rewards or punishments they think appropriate in the circumstances. So, for instance, if the Bush administration wished to use Harriet Miers' religion in selling her to particular influential religious supporters such as James Dobson, it ought to have been willing to say much the same thing publicly. It's not clear that it was: it appears to have offered one set of justifications for the nominee privately and another set publicly. This is not a partisan accusation: a Democratic senator who voted against a religious candidate on that basis but dressed up the vote in other public justifications would fail the same test. One thing we might observe about the first example, though, is that it should be taken as odd and unfortunate if a public official who believes and argues that religion should be welcome in the arena of public debate, as I think is true of the President, then conceals religious reasons for particular decisions. (Let me say this point raises controverted factual questions. You're welcome to argue with them. My paper assumes the truth of certain public reports about the Miers case, but doesn't assert them as an absolute certainty.)

A related principle is that of consistency. An argument for or against the use of religion in the context of a particular judicial nomination ought to apply consisently in the case of later nominations. This principle is hardly unique to nominations, or even to the issue of religion in politics: it is nothing more than a suggestion that integrity and consistency in argument are important benchmarks for judging political decision-makers. In my view, many of the voices in the recent judicial nomination passed this test: they argued that the Test Clause barred certain questions about "deeply held beliefs" raised against nominee Roberts, and also argued that it barred President Bush from raising religion in support of nominee Miers. I happen to think they were consistently wrong: the Clause bars neither of these things. But they were consistent. A few groups loudly protested the use of religion in the Roberts case, but were conspicuously silent in the case of Miers.

A third principle we should keep in mind is an appreciation for nuance. Although religious faith plays a profoundly important role in people's lives, that role cashes out in complicated ways. It is difficult enough to figure out what a religion requires for its adherents: for instance, whether the obligations of decision-makers who are Catholic differ depending on whether they are making the law, interpreting and enforcing the law, and so on. It is still more difficult because various individuals take different views of what those obligations mean to them, personally or in an official capacity. So one may hope that we will approach these issues with a sense of caution and nuance. I'm not sure public officials often pass this test. Doubting questions aimed at Catholic nominees often seem to miss these complexities; conversely, the extent to which supporters of a nominee like Miers assume that nominee will judge a particular way because of her religious views can be similarly shallow. I might add that one commenter yesterday wrote that we are entitled to view Muslim candidates or nominees as "inherently trustworthy" on a blanket basis. I strongly disagree with this view as a general matter. But I would also point out that the variation in views held by various Muslim individuals, and the still greater variation in individual views about the relationship between one's faith (Muslim or otherwise) and one's conduct in office, raise serious questions about whether such a view is simply blind to the nuanced role of religion -- any religion -- in the real world, in the lives of actual people of any and every faith.

The fourth principle I call one of genuine respect. That is, we ought to be genuinely respectful of the vital role of religion in many people's lives, and of their entitlement to engage in public dialogue, often in explicitly religious terms. But genuine respect means taking religion seriously, not just as something anodyne or trivial. It means that just as we are entitled to make religious arguments or praise religious views, or commend someone religious as a fine and moral nominee, we are entitled to criticize those views in equally clear terms where we disagree with them. During the Roberts nomination, one group wrote an open letter saying that "[r]eligion, like ethnicity or race, is a natural part of one's background and may be referred to as naturally -- and as respectfully -- as those other things are." I may be overreading this sentence, but it seems to me to suggest that it's OK to discuss religion in politics only in positive and anodyne terms. But religion is not only like race or ethnicity: it can also involve a set of deeply held and controversial views. As with such views, religious views should be entitled to figure in political debate, but they are as subject to praise and criticism as any other views. Of course, some of this debate may be divisive or intemperate. But at least it will involve real dialogue, and I think that is far preferable to a more neutered form of public debate.

Finally, a dash of humility is called for. We all "see through a glass, darkly," as Corinthians puts it, and we ought to be suitably humble both about our own views as we discuss such contentious issues, and about those of others. While I think this is especially important in an area as contentious and potentially divisive as the intersection of religion and politics, it is, of course, a general virtue, of which we could all use more in our private and public lives.

Again, there's an idealized quality to these principles of constitutional etiquette, and I don't expect them to be followed or applied in any rigid fashion. But again, for those of us who want to live appropriately as citizens under the Constitution, but who believe that the Constitution does not settle every issue and leaves us to make our own way as best we can, it's important for us to think about how to exercise the discretion we are given within the public and political realm, and about how to evaluate the public officials who serve us, in ways that partake of an integrity that is larger than any single controversy. I don't think the Religious Test Clause ultimately tells us much about whether various Senators, the President, and other public and political actors behaved appropriately in the case of Roberts and Miers. But given that those cases are unlikely to be the last time that religion figures in a judicial or other nomination, it is never too early for us to think about how we ought to govern ourselves in such circumstances, in light of whatever constitutional "values" and rules for public dialogue we think best reflect a properly functioning society. These standards are a start. Of course, I welcome your views, and perhaps other candidates for a rule of "constitutional etiquette."


Senators (or Representatives) and Guns:

Apropos the incident involving Senator Webb's aide, can anyone point me to the relevant legal rules about whether Senators and Representatives may themselves carry guns in D.C.? I've heard varying things on the subject, and I'd love to see some authoritative citations. Thanks!

UPDATE: Roll Call reports,

Although the D.C. prohibition against firearms was put into place in 1975, under a provision in federal law Members of Congress and their staffs are in essence given the right to bear arms on Capitol grounds.

According to Capitol Police Board regulations established in 1967, Members and their aides are allowed to transport licensed firearms on the Capitol grounds in the course of carrying out their official duties provided the weapons are "unloaded and securely wrapped." (Directives published in recent years also state that staff must be verified by Capitol Police.)

Although the regulations expressly prohibit weapons on the floor of either chamber, as well as in the adjacent lobbies, cloakrooms and galleries, individual Members are allowed to "maintain firearms within the confines of [their] office."

But while Members and aides would technically have to violate District law just to transport a handgun to the Hill, Capitol Police are not under any obligation to report the offense to D.C. authorities.

I'm not sure, though, just what the relevant "provision in federal law" is; nor am I sure that the Members lack an exemption from District law -- as I said, I'd love to have some pointers to the precise laws involved. Thanks to Joe Olson and FreeRide for alerting me to the Roll Call story.


Gun Possession by Senator Webb's Aide:

There's been some discussion about whether D.C. prosecutors should exercise their discretion not to prosecute Senator Webb's aide for possessing a gun in violation of D.C. law. But if, as Senator Webb says, the aide "completely inadvertently took the weapon into the Senate yesterday," in the sense of bringing in a bag containing the gun without realizing that it might contain a gun, then the aide is simply not guilty.

Generally speaking, one isn't legally guilty of criminal possession of an illegal item (whether guns, drugs, or what have you) if one (1) doesn't know that one is possessing the item, and if one (2) isn't even aware of a substantial and unjustifiable risk that one is possessing it. Mistake about whether possession is legally forbidden to you is generally not a defense. Moreover, if one thinks that one might well possess the item, but one doesn't investigate further (or, worse still, one takes affirmative steps to avoid learning the truth), then one would be guilty. But if a cab driver is handed a suitcase by a passenger to put in the cab's trunk, the driver is not guilty of illegal possession of a gun or of drugs stored in the suitcase (unless he is aware of the suitcase's contents, or at least suspects what the suitcase's contents may be). Likewise with an aide, if he really didn't know or suspect what was in the bag.

That's a broadly recognized legal principle, but there's even some specifically D.C. authority on point: See Campos v. United States, 617 A.2d 185 (D.C. 1992):

[A] person who has no knowledge that he or she has a pistol, despite the fact that it is located on his or her person, does not exercise direct physical control over the pistol [required for possession]. One cannot effectively exercise control over a pistol on his or her person unless he or she knows that it is there. Cf. Johnson v. United States, 309 A.2d 497, 499 (D.C.1973) (government must prove defendant had knowledge to establish possession). Similarly, a person cannot have the requisite intent to do the prohibited acts that "constitute the carrying of a pistol without a license" unless he or she knows that the object he or she is carrying is, in fact, a pistol. A defendant cannot possess the requisite general intent to commit a crime without "be[ing] aware of all those facts which make his [or her] conduct criminal."

Now I say again that if the aide knew or suspected he was carrying a gun, he would be legally guilty even if he, for instance, thought there was some statutory exception for Senators' aides. In that situation, the prosecutor would have to exercise his discretion in deciding whether or not to prosecute. And of course even if the aide says he didn't know or suspect he was carrying a gun, the prosecutor would have to decide whether he believes the aide (though that's not usually what's called "prosecutorial discretion"); and it may well be that the Senator's vouching for the aide will tip the scales on that point, so I'm not claiming that if charges against the aide are dropped, that decision will be entirely independent of who the aide's boss is. Nonetheless, if the aide really "completely inadvertently" brought in the gun, in the sense of not knowing or suspecting that there was a gun in the bag, then he's just not guilty. And a prosecutor who believes that the aide just didn't know what was in the bag should therefore drop the charges.


Interesting Vote Line-Up: From Tuesday's decision in Limtiaco v. Camacho:
THOMAS, J., delivered the opinion for a unanimous Court with respect to Part II, and the opinion of the Court with respect to Parts I, III, and IV, in which ROBERTS, C. J., and SCALIA, KENNEDY, and BREYER, JJ., joined. SOUTER, J., filed an opinion concurring in part and dissenting inpart, in which STEVENS, GINSBURG, and ALITO, JJ., joined.
  The decision was unanimous as to jurisdiction, but divided 5-4 on the merits on a question of statutory interpretation — whether the phrase "tax valuation" in 48 U. S. C. §1423a means "assessed value." Thomas, Roberts, Scalia, Kennedy, and Breyer took a textualist approach and conclude that the answer is "yes." Souter, Stevens, Ginsburg and Alito took a purposivist approach and conclude that the answer is "no."

  Justice Alito's decision to join a purposivist opinion reminds me of his second opinion for the Court, Zedner v. United States, in which Alito included a section on legislative history even though Justice Scalia objected and refused to join the full opinion. As I wrote on Zedner at the time: "Alito's use of legislative history may surprise those who were expecting him to be a Scalia clone. But as I and others have been saying for a long time, Alito isn't a Scalia clone."

Tuesday, March 27, 2007

False Rumors on the Internets: To set the record straight, no, I won't be an American Idol contestant any time soon. Love the picture, though.

More on Goodling and the Fifth Amendment Privilege: Monica Goodling's announcement that she will take the Fifth before Congress has focused a lot of attention on whether she has a right to assert the Fifth Amendment privilege in these circumstances. I blogged a bit about it earlier, and I wanted to add a few more thoughts. My bottom line: I tend to doubt the assertion of privilege was proper, but I can't be certain without knowing a lot more facts.

  In re Morganroth, 718 F.2d 161 (6th Cir. 1983), is instructive. Morganroth had given testimony under oath in an earlier proceeding, and in this case was going to be asked under oath about his earlier testimony. Morganroth asserted his Fifth Amendment privilege on the ground that he worried his truthful testimony this time might lead to prosecution for earlier false statements. Here is how the Sixth Circuit analyzed the question:
[W]hile it is clear that a witness, upon interposing his claim of privilege, is not required to prove the hazard in the sense in which a claim is usually required to be established in court, Hoffman, supra, 341 U.S. 486, it is equally clear that a witness' "say so" does not by itself establish the hazard of incrimination. Id. Where there is nothing suggestive of incrimination about the setting in which a seemingly innocent question is asked, the burden of establishing a foundation for the assertion of the privilege should lie with the witness making it. We do not hold, however, that a witness has the burden of proof on this issue. A witness presents sufficient evidence to establish a foundation for the assertion of the privilege and shows a real danger of prosecution if it is not perfectly clear to the court "from a careful consideration of all of the circumstances in the case, that a witness is mistaken, and that the answer[s] cannot possibly have such a tendency to incriminate." Hoffman, supra, 341 U.S. 488, 71 S.Ct. 819.

Stated differently, sufficient evidence is presented by a witness if a court can, by the use of reasonable inference or judicial imagination, conceive a sound basis for a reasonable fear of prosecution. Short of uttering statements or supplying evidence that would be incriminating, a witness must supply personal statements under oath or provide evidence with respect to each question propounded to him to indicate the nature of the criminal charge which provides the basis for his fear of prosecution and, if necessary to complement non-testimonial evidence, personal statements under oath to meet the standard for establishing reasonable cause to fear prosecution under this charge. Statements under oath, in person or by affidavit, are necessary because the present penalty of perjury may be the sole assurance against a spurious assertion of the privilege. Argument may be supplied by counsel but not the facts necessary for the court's determination.
Id. at 169-70.

  So the test seems to be pretty mushy and fact-sensitive: the question is whether Goodling could establish to a judge "sufficient evidence" such that the judge could "by the use of reasonable inference or judicial imagination, conceive a sound basis for a reasonable fear of prosecution." I tend to doubt that such a sound basis exists here. But then we would need to know a lot of factual details to make that call with any certainty; we would need to know exactly what Goodling could tell the judge about why she feared prosecution. (We probably also need to know what the judge ate for breakfast, but that's another matter.) We just don't know those details, so I don't think we can make an assessment of whether Goodling validly asserted the privilege. It seems unlikely to me that the assertion of privilege is valid, but I can't be sure.

  Finally, I wanted to respond to Eric Muller's point that the Fifth Amendment protects the innocent. It's very true that the Supreme Court has said this, although I think it's generally meant in a somewhat specific way. For example, Grunewald v. United States, 353 U.S. 391 (1957), suggests in dicta that a person can assert the privilege when they have reason to think they'll be prosecuted despite being innocent. When might that occur? Imagine a case in which a suspect was framed and all the evidence points towards him. He's innocent, but he would have reason to think that even his innocent disclosures could be used against him. He would still be able to assert the privilege even though he is innocent and would testify truthfully. So as in Morganroth, the key issue is always whether there is a "real danger" of prosecution.

  Anyway, that's my sense of things. I'm not a Fifth Amendment expert, so if I'm off base please let me know and I'll post a correction.

Related Posts (on one page):

  1. More on Goodling and the Fifth Amendment Privilege:
  2. Goodling's Basis for Taking the Fifth:
  3. Goodling To Take the Fifth:

Should A Law Student Put His LSAT on His Resume?:

Bill Henderson and Jeff Stake discuss (in the comments). Dan Filler follows up.

When I was a law student at Yale, I initially did not put my LSAT score on my resume. However, as a first-year student, with all our grades pass/fail first semester, it quickly became apparent that the students who went to Yale, Harvard, Amherst and similarly prestigious schools for undergrad were getting Summer law firm jobs, and those of us who went to Brandeis, Trinity, Binghamton, etc.--schools with lesser brand names--were not. In other words, law firms seemed to be using undergraduate institution as the best available proxy for ability. Seeing that, and wanting to prove I was "no slouch", I put my LSAT on my resume. I probably wouldn't have done this if Yale had class rank or other objective measures of student performance, but, frankly, it seemed to help.

I also remember that when I was clerking, I interviewed a clerkship candidate who attended a good regional law school, and was at the top of her class. Did it influence me that her resume said "LSAT: 48" (the highest score at the time)? Yes, it did. My judge didn't normally hire from this law school, and I didn't know much about the quality of students or instruction there, but her LSAT score showed that she could have attended Harvard, had she so desired. That said, I'm sure some recruiters, especially those who did well in law school but did not have stellar LSATs, get offended when they see an LSAT score on a resume.

UPDATE: See also this post, discussing the trend of employers asking adult workers about their SAT scores from long ago.


On the Importance of the U.S. News Rankings: In response to my earlier thread posting the latest U.S. News law school rankings, some commenters expressed shock and dismay that I would include them in a post. Commenter BlackDoggerel wrote:
Prof. Kerr, I know it's "newsy" to report the U.S. News Rankings, especially when they're hot of the presses, and I'm sure a lot of people are interested in knowing them (in particular, 23-year-olds on chat boards). But I'm actually surprised that you would post them here. I always thought you/the VC would look quite skeptically on these very imperfect, crude measurements of the "quality" of law schools. But your post suggests that you buy into them as legit.

I guess what I'd like to know is, do you view these rankings as helpful in any way, rather than simply broad generalizations pandering to the rankings crowd?
Commenter "the critic" wrote:
Am I the only one who sees the irony here? Everyone decries the USNWR rankings, but even the blog scholars can't resist obsessing over them. How sad.
  Just to be clear, I personally think it's silly to focus on year-to-year fluctuations in the U.S. News ranking as a sign of changes in school quality. The rankings themselves are highly flawed, for all the reasons Brian Leiter and others have pointed out many times. Fluctuations occur every year, and real movement over time is actually quite rare. Plus, my understanding is that some schools put more effort than others into gaming their numbers, which means that their numbers will be out of whack (at least until the gaming efforts are exposed and the numbers drop). So I certainly wouldn't take year-to-year changes in U.S. news rankings as any indicator of changing school quality.

  At the same time, a lot of people care about these numbers. Students factor them into their admissions decisions; schools know that, so they make decisions to optimize their numbers; and the result is that the U.S. News rankings are relevant year to year in and of themselves even if those changes don't accurately signal school quality. Given that, it seemed worth pointing out even though it's hardly a major news story. Anyway, that's my tentative take on this.

  UPDATE: I have fiddled with the post to make the point clearer.

Goodling's Basis for Taking the Fifth:

Like Orin, I was quite skeptical when I heard that Bush Justice Department appointee Monica Goodling planned to invoke her Fifth Amendment rights against self-incrimination if called to testify about why the administration decided to remove several U.S. attorneys. Eric Muller is "disgust[ed]" by the Justice Department's actions, but nonetheless thinks she was justified. As he writes on Is that Legal?

The Fifth Amendment privilege protects not just the guilty, but also the innocent, who fear that even their entirely truthful responses might provide the government with incriminating evidence from their own mouths. (Ohio v. Reiner, 532 U.S. 17 (2001) (dictum).) "The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances." (Slochower v. Bd. of Higher Ed. of the City of New York, 350 U.S. 551, 557-58 (1956).)

A careful defense lawyer would be especially justified in advising his or her client to consider taking the Fifth in a highly charged political environment such as the Senate Judiciary Committee's investigation into the firings of U.S. Attorneys and the alleged minimization (dare we say "cover-up?") of the role of the Attorney General and the White House in those firings. It is important to remember that "a witness innocent of wrongdoing may well refuse to answer a question not because he fears conviction, but because he fears unfounded prosecution, a risk which every one runs at all times, theoretically at least." (Lewis Mayers, Shall We Amend the Fifth Amendment? 4 (New York: Harper & Brothers, 1959).)

Both Orin and Eric know more about the right against self-incrimination than I do, so I'll defer to the two of them.


What Passes for "Debate" at the Middle East Studies Association:

Should we boycott all Israeli goods, products, services, and people, or should we exempt academics?


New originalist evidence for the incorporation debate:

A new paper to be published in the Ohio State Law Journal, written by Professor Bryan Wildenthal, argues that there is indeed originalist support for the idea that the Fourteenth Amendment was understood to incorporate the Bill of Rights as a restraint on action by the states. Wildenthal is especially critical of the originalist arguments offered against the incorporation doctrine by Charles Fairman and Raoul Berger. According to the abstract, the article

demonstrates the truly shocking and inexcusable extent to which Fairman, [Stanley] Morrison, and especially Berger mishandled the evidence and profoundly misunderstood the meaning of the Fourteenth Amendment. The extent of their scholarly malpractice has not been fully or adequately explored until now. This makes it especially disturbing that their works remain amazingly influential, decades after they were largely debunked. . . .

Surprisingly, the research presented in this article shows that there is still a great deal new to say about the original understanding of the Amendment in 1866-67. The article discusses primary source materials never adequately analyzed before. These include a May 1866 New York Times editorial published two days after the Amendment was introduced in the Senate, and an essay by a Kentucky state judge published during 1866-67. These materials, together with other evidence, suggest that the goal of nationalizing the Bill of Rights may have been widely understood during the ratification period.


Blankenhorn on SSM in the Weekly Standard:

David Blankehorn has an interesting article coming out in the Weekly Standard that appears to be a condensed version of some of the arguments made in his new book arguing against gay marriage, The Future of Marriage.

The article is interesting in part because he eschews the argument made by Stanley Kurtz that data from Europe demonstrates a correlation between gay marriage and a decline in marriage and other social ills. From this (flawed) correlation data, Kurtz argues that gay marriage must have caused the problems. Says Blankenhorn: "Neither Kurtz nor anyone else can scientifically prove that allowing gay marriage causes the institution of marriage to get weaker." He suggests "giving up the search for causation." Maggie Gallagher, too, has avoided relying on Kurtz. Robert George of Princeton has seemed agnostic about Kurtz's claims. Now Blankenhorn rejects the Kurtz thesis. It is becoming difficult to find even opponents of same-sex marriage who think Kurtz is right.

Blankenhorn has a new twist on some survey data, however, that he believes does undermine the "conservative case" for gay marriage. Blankenhorn writes that a 2002 survey of attitudes about families and marriage from 35 countries around the world shows that the presence of gay marriage or civil unions in a country correlates strongly with a series of beliefs that he describes as, roughly speaking, anti-marriage. For example, people in countries with gay marriage or civil unions are more likely to agree with statements like, "One parent can bring up a child as well as two parents together," or "It is allright for a couple to live together without intending to get married." Conversely, people in countries with no recognition of gay relationships are more likely to agree with statements like, "Married people are generally happier than unmarried people," or "The main purpose of marriage these days is to have children." (To keep this post relatively short, I won't quibble here with the numbers in the surveys, the methodology, or the age of the data. What would happen to the correlation, for example, if we added a country like South Africa, which recently recognized SSM, to the mix?)

All this seems to show is that the more socially conservative a country is the more likely it is to oppose gay marriage and vice-versa. That's no surprise. It's no accident, for example, that the first states to recognize gay relationships in some form have been blue states, and that the states where the strongest majorities have banned gay marriage have been deep red states.

So what does this correlation mean for the debate? To Blankenhorn, it suggests that support for gay marriage is one of a "cluster" of "mutually reinforcing" beliefs about family life that are anti-marriage. To make this argument he comes up with a revealing analogy:

Find some teenagers who smoke, and you can confidently predict that they are more likely to drink than their nonsmoking peers. Why? Because teen smoking and drinking tend to hang together. . . .

Because these behaviors correlate and tend to reinforce one another, it is virtually impossible for the researcher to pull out any one from the cluster and determine that it alone is causing or is likely to cause some personal or (even harder to measure) social result. All that can be said for sure is that these things go together. To the degree possible, parents hope that their children can avoid all of them, the entire syndrome--drinking, smoking, skipping school, missing sleep, and making friends with other children who get into trouble--in part because each of them increases exposure to the others.

It's the same with marriage. Certain trends in values and attitudes tend to cluster with each other and with certain trends in behavior. . . . They are mutually reinforcing. [emphasis added]

Accept one of the beliefs (e.g., that there's no need to get married if you want to raise kids) and you are likely to accept them all (including support for SSM). Reognize SSM and you are likely to have a populace with anti-marriage views. But this doesn't work well as an argument against SSM.

First, while he convincingly rejects Kurtz's correlation-as-causation argument, Blankenhorn himself slips between correlation and causation. Unless supporting SSM or recognizing SSM in a country somehow causes people to accept anti-marriage views, or at least causes them to be more likely to hold such views, then there is no "mutually reinforcing" "cluster" of beliefs to be worried about. There is only a coincidence of beliefs, which may or may not be causally related. Support for SSM among individuals or recognizing SSM in a country is no more tied to general anti-marriage views than is opposition to the death penalty (which I'd bet is another correlation we would find) or any number of other beliefs that might be correlated in traditionalist and non-traditionalist countries. Blankenhorn picks certain survey results out of all the questions asked and asserts, effectively, "these must go together, they must be part of the same world-view."

To say that these beliefs are "mutually reinforing," as Blankenhorn does, is just another way of saying that one bears a causal relationship to the other. But as Blankenhorn correctly notes, "Correlation does not imply causation. The relation between two correlated phenomena may be causal, or it may be random, or it may reflect some deeper cause producing both."

Second, as Blankenhorn's analogy to teen smoking and drinking reveals, his conclusion that SSM is a bad thing is embedded in his argument. Yes, teens who smoke are more likely to drink and both produce individual and social ills. But we know they produce social ills not because these activities are correlated, but because there is a demonstrated and distinctive harm that each produces. Smoking causes cancer. Drinking causes drunk driving. Similarly, having children out-of-wedlock demonstrably increases risks to them; SSM may or may not produce social ills, but this conclusion is not reached by noting a correlation with practices that do cause harm.

Think of it this way: Suppose I could show that people who attend church regularly are more apt to hold very traditionalist views about the role of women (e.g., that a woman should be a homemaker, not a professional, and should defer to her husband's authority) or are more likely to be racist (e.g., they oppose interracial dating or marriage), and in fact, suppose the survey data further showed that the more often people attend church the more likely they are to harbor racist and sexist beliefs. Would I have shown that attending church is a bad thing?

Bringing this back to marriage, I'd bet that there was a correlation in 1900 between support for ending the marital rape exemption, support for equalizing women's role within marriage, granting women the right to vote, and support for ending marriage altogether. This correlation, if it existed, would tell us nothing about whether ending the marital rape exemption or promoting women's equality or enfranchising women were good ideas.

I suppose Blankenhorn could respond: "Kids shouldn't smoke because this is more likely to cause them to drink, even if smoking itself weren't harmful. Similarly, we shouldn't have SSM because support for SSM is more likely to cause people to believe things that are demonstrably harmful to marriage, even if SSM by itself is not." But this response would itself depend on a conclusion that there is some causal relationship between support for SSM and support for anti-marriage positions, and yet we cannot know this from a correlation.

A person who's generally anti-marriage could believe, quite mistakenly, that SSM too is anti-marriage. Instead of deinstitutionalizing marriage, SSM could be a small part of reinstitutionalizing it, despite the marriage opponent's most fervent hopes. Nothing in a series of correlations in survey data answers that question either way.

In another part of his Weekly Standard article, Blankenhorn quotes from a number of academic supporters of SSM who do indeed see it as a way of deinstitutionalizing marriage. He argues that this also shows that SSM and deinstitutionalizing marriage "are linked." I'll address that argument in a coming post.

UPDATE: Stanley Kurtz agrees with me that, even though Blankenhorn eschews causation from the correlations he presents, in fact he slips into causal arguments. This isn't a problem for Kurtz, of course, but on Blankenhorn's own logic it's a big problem for his own argument.


New U.S. News Rankings: A colleague of mine has sent me what appears to be the new U.S. News law school rankings, as sent to him via an e-mail from the U.S. News site; a quick check with the XO board suggests it's legit. The magazine always changes the numbers around enough to make the issue seem newsy, and this year is no exception. Anyway, here is the new "top 35":
1 Yale University (CT)
2 Harvard University, Stanford University (CA)
4 New York University
5 Columbia University (NY)
6 University of Chicago, University of Pennsylvania
8 University of California-Berkeley, University of Michigan-Ann Arbor
10 Duke University (NC), University of Virginia
12 Northwestern University (IL)
13 Cornell University (NY)
14 Georgetown University (DC)
15 University of California-Los Angeles
16 University of Southern California (Gould), Vanderbilt University (TN)
18 University of Texas-Austin
19 Washington University in St. Louis
20 Boston University, University of Minnesota-Twin Cities
22 Emory University (GA), George Washington University (DC)
24 University of Iowa
25 Fordham University (NY) University of Illinois-Urbana-Champaign, Washington and Lee University (VA)
28 Boston College, University of Notre Dame (IN), University of Washington
31 College of William and Mary (Marshall-Wythe) (VA), Ohio State University (Moritz), University of Wisconsin-Madison
34 George Mason University (VA), University of California-Davis
UPDATE: My apologies, in the initial reformatting I had some numbers wrong. Sorry!

Everything You Ever Wanted to Know About Post-Kelo Reform, But Were Afraid to Ask:

My new paper on Post-Kelo reform (currently under submission to journals) is now available on SSRN. "The Limits of Backlash: Assessing the Political Response to Kelo" is the first comprehensive analysis of the state and federal eminent domain reform legislation enacted as a result of the political backlash against the Supreme Court's decision in Kelo v. City of New London. Here's an excerpt from the abstract:

The Supreme Court's 2005 decision in Kelo v. City of New London, which upheld the power of government to condemn private property for purposes of “economic development,” generated a massive political backlash from across the political spectrum. Over forty states, as well as the federal government, have enacted or considered post-Kelo reform legislation to curb eminent domain. This Article is the first comprehensive analysis of the legislative response to Kelo. It challenges the validity of claims that the political backlash to Kelo will provide the same sort of protection for property owners as would a judicial ban on economic development takings . . .

Part I describes the Kelo decision and then documents widespread anger that it generated. Both state-level and national surveys show overwhelming public opposition to “economic development” takings . . .

Part II analyzes the state and federal political response to Kelo. Twenty-eight state legislatures have enacted post-Kelo reform laws. However, seventeen of these are largely symbolic in nature, providing little or no protection for property owners. Several of the remainder either have significant loopholes or were enacted by states that had little or no history of condemning property for economic development . . . The major exceptions to the pattern of ineffective post-Kelo reforms are the ten states that recently enacted reforms by popular referendum . . .

Part III advances a tentative explanation for the pattern of ineffective post-Kelo reform, in spite of overwhelming public sentiment in favor of such legislation. I contend that the ineffectiveness of post-Kelo reform is largely due to widespread political ignorance. The political ignorance hypothesis is imperfect. However, it accounts for three otherwise baffling anomalies: the sudden emergence of the backlash after Kelo, in spite of the fact that the decision made little change in existing precedent; the passage of ineffective laws by both state and federal legislators; and the fact that that post-Kelo laws enacted by popular referendum tended to be much stronger than those enacted by state legislatures.


[Paul Horwitz (guest-blogging), March 27, 2007 at 10:38am] Trackbacks
What's Right About the "Deep but Narrow" Religious Test Clause:

Yesterday I laid out a more or less historically based argument about the relatively small scope of the Religious Test Clause. "Narrow" to modern eyes, anyway; I don't think the generation that framed it would have described it that way. Some of the comments have naturally asked, what is my normative view of this conclusion? So, unlike yesterday, let me cut to the chase. I think the reading I have offered is also normatively sound and even attractive, notwithstanding — indeed, in some ways because of rather than in spite of — the parade of horribles I offered at the end of yesterday's post. That normative conclusion is important to me because, although I think history is an important interpretive tool and constraining force in constitutional interpretation, I don't think it is absolutely determinative.

I think the narrow approach I counseled is sound for a number of reasons, which should be attractive to readers from a fairly wide cross-section of constitutional and/or political views. First, it resists the urge to overinterpret the Constitution to solve every "problem." A broad reading of the Clause, by constitutionalizing a vast swath of conduct with respect to judicial and other nominations, narrows the realm of political accountability for such conduct rather than place the enforcement power where it should mostly rest — in the hands of citizens. Indeed, to me one of the peculiarities of the broad reading of the Test Clause taken by many commentators during the Roberts/Miers nominations was that it seemed to run contrary to their general inclination not to expand the meaning of (some) other constitutional provisions beyond their historical scope.

This approach is also sound because, as some commentators have recognized and as Eugene wrote here some time ago, of course religion may be relevant to a nominee's fitness for public office. As the framers and ratifiers recognized, and as Eugene wrote somewhat more recently, "beliefs on contested moral issues are an important and necessary part of the President's decisions about whom to appoint." To take Eugene's example, the President may quite reasonably refuse to appoint as Attorney General someone whose religious beliefs cause him or her generally to oppose the death penalty.

Eugene's example is based on the ways in which religious belief can affect public conduct, and this supports another point made in my article and elsewhere: that the line between religious beliefs and religiously derived beliefs that are highly relevant to a nominee's fitness for office is sufficently blurred that we should resist a reading of the Test Clause that ignores the distinction. But the framers believed more generally that personal character (of which religion was one important aspect) was relevant to public office. I think they were right, and so I think the point can be extended beyond the easy cases. To take a somewhat unlikely example, imagine that the President nominates a Satanist to judicial office, and that this individual's beliefs take the form of advocating and working toward the triumph of evil over good in the universe. OK, not a great pick politically speaking, although we may be missing an untapped constituency. Now, surely the nominee could not be required to formally renounce Satan and all his works as a condition of entry into office. But is it really the case that a Senator could not validly be concerned that such a worldview is inconsistent with judicial office? If the nominee protested that his religious beliefs would not intersect with his judicial office, could a Senator not similarly be concerned that anyone who believes in working for the triumph of evil over good should not be taken at his word? Could not the fact of the nominee's Satanism be an inherent bar for some Senators faced with a decision whether to confirm? Despite the obvious risks attendant upon such an approach — after all, the likely victims of such a vote are unlikely to be Satanists — I think it is still a far sounder and more attractive reading of the Religious Test Clause than one that treats any such concerns as irrelevant and/or forbidden entirely.

Finally, I think my narrow reading is sound because it honors a broader principle: that religious beliefs should not generally be disqualified from full inclusion in any aspect of public discussion and deliberation. The Establishment Clause, at least in my view, disables government from doing certain things respecting religion, but it does not secularize public deliberation, and it should not. As Martha Minow has written, "religiously inflected arguments and perspectives bring critical and prophetic insight and energy to politics and public affairs." We should be loath to exclude those benefits to our public polity, just as we should be loath to forbid individuals, citizens and lawmakers alike, who wish to speak in a distinctly religious voice within that polity. Many who agree with this general principle tend, I think, to treat it as rather a one-way ratchet: treat religion well in the public square, but anything that exposes religious individuals to risks in public deliberation should be verboten. But I think the narrow reading of the Religious Test Clause actually best honors this principle, by saying that religion is potentially as relevant and important a factor in considering nominees as other factors might be, and equally entitled to be a subject of discussion.

Three final notes for today. First, all of the above is still subject to the fundamental rule of the Religious Test Clause: even the Satanist cannot be made to swear to or renounce particular religious beliefs as a condition of entry into a federal office. Senators and Presidents may or may not consider religion when making individual decisions about fitness for office, but no one can be oath-bound to adopt or renounce a religious faith or tenet. Second, although I wrote that such considerations may be relevant and are not constitutionally forbidden, I also emphasize that such votes or inquiries may also be politically costly — as the President discovered, at least, during the Miers nomination, although I resist the way in which his critics treated his conduct as a constitutional violation. That example suggests that politics can, in fact, be an important constraint on the misuse of religion in the nomination context, although surely it is an imperfect one.

Finally, just because I think the Constitution doesn't ultimately say much to foreclose the kind of rhetoric we saw at work during the nominations of Pryor, Roberts, Miers, and others, that doesn't mean we can't have a useful discussion, derived from "constitutional values" and our broader values as a nation, about what sorts of standards ought to govern the use of religion in this and other public debates. Call it a sort of "constitutional etiquette," to use the term I advance in my article. I'll write about that tomorrow. In the meantime, aside from the usual (and valuable!) "you're crazy" or "you're obviously right, hence uninteresting" comments, I hope some commenters will offer their own take on what sorts of rules or values should govern when citizens and lawmakers invoke religion in public debate, around nominees or other issues.


Senator Reid, Billboard King:

There's an interesting little story in today's Washington Post about Senate Majority Leader Harry Reid's efforts to insert a provision protecting billboard companies from local land-use controls into the bill funding U.S. troops in Iraq and setting a timetable for their withdrawal.


Monday, March 26, 2007

Paulsen leaving University of Minnesota:

After 16 years on the faculty of the law school, Mike Paulsen has announced he's joining the University of St. Thomas law faculty in Minneapolis starting this fall. He is a scholar of the first order, an irreplaceable colleague, and a personal friend. He will be greatly missed.

Interference with Tobacco Litigation: DoJ Responds:

In today's Washington Post, John Kenney and Bruce Ohr respond to the allegations that the Bush Administration interfered with the federal government's RICO case against the major tobacco companies.

One of us is the senior career official in the Justice Department's criminal division, has served in the department for 56 years through Democratic and Republican administrations, and also served as the criminal division's principal decision maker in the tobacco case during the relevant period. The other one of us is the career chief of the organized crime and racketeering section in the criminal division and has served at Justice for 16 years, also during Democratic and Republican administrations.

The allegations reported in the article are entirely groundless. The Justice decisions at issue adopted and followed the authoritative positions we developed and the specific recommendations we made and approved as senior career prosecutors in the criminal division, which by Justice regulation is vested with authority over enforcement of civil and criminal RICO. Those positions, recommendations and decisions were based entirely on legal considerations, not political ones -- as the department's office of professional responsibility, staffed exclusively with independent career attorneys, concluded after the matter was investigated.

(Link via Ed Whelan)

Related Posts (on one page):

  1. Interference with Tobacco Litigation: DoJ Responds:
  2. Was There "Political Interference" in Tobacco Litigation?

Assessing our Moral Beliefs in Light of Predicted Future Moral "Progress":

At the excellent Overcoming Bias blog, Hal Finney makes an insightful point about our perceptions of past and future moral progress:

I am fascinated by the question of how our morality will change in the future. It's relevant to the issue . . . of whether we are truly making moral progress or not. So long as we view the question from a perspective where we assume that we are at the apex of the moral pyramid, it is easy to judge past societies from our lofty position and perceive their inadequacies. But if we imagine ourselves as being judged harshly by the society of the future, there is less self-satisfaction and ego boosting involved in making a case for true moral progress, hence less chance for bias. (In fact, when people make claims about how future society will judge the world of today, they almost always assume that their own personal moral views will become universal, so this hypothetical judgment merely mirrors their own criticism of contemporary society.).....

If you can make a case for progress even acknowledging that in the future your own practices may be seen as savage and appalling, you are much less likely to be manifesting self-satisfaction bias. On the other hand, if you find yourself resisting ideas about future morality being different from the present, you need to look closely to see if you aren't just protecting your own ego.

To protect against this kind of bias in favor of our own moral ideas, it helps to consider whether there is reason to believe that some of the moral views we hold dear will be widely repudiated in the future. Note that this is different from simply predicting that public policy won't match our preferences, an outcome that might occur for any number of reasons. It is a prediction that one or more of our strongly held moral beliefs will be rejected by a broad societal consensus.

In my own case, I see at least three areas where there is a good chance of this happening:

1. Animal Rights.

I am generally opposed to most if not all arguments for animal rights. But I have to acknowledge a real possibility that future morality will move strongly in the direction of assigning higher status to animals. That has been the trend of the last fifty years or more, and it shows little sign of stopping. I doubt it will go as far as, say Peter Singer would want, but there is a good chance it will go a lot further than I now believe to be justified. I suspect that the chance of major movement in this direction is at least 50%.

2. The Death Penalty.

I support the death penalty, at least in the case of criminals guilty of committing multiple murders, acts of terrorism, and major war crimes and crimes against humanity. However, the trend of opinion is definitely against me on this one, and is likely to continue to move in that direction unless there is another major upsurge in crime, such as that which led to a resurgence of support for the death penalty in the late 1960s and 1970s. Over the next 20-30 years, I would set the odds of continued substantial increase in moral stigmatization of the death penalty at 60%, and 70-80% if there is no major crime wave.

3. Forced Labor.

As a libertarian, there is nothing short of murder that I abhor more than forced labor. Modern morality strongly condemns slavery, but many people are amenable to arguments for forced labor under other names, such as mandatory "national service," "giving back to the community," and so on. Even today, many liberal democratic nations (including France, Germany, and Switzerland) continue to use the draft, even though there is no military reason for them to do so (their armies would be more effective if manned by volunteer professional soldiers). Both left and right-wing politicians (including top congressional Democrats and Republican presidential contender John McCain) often float mandatory "national service" proposals, and there is a strong reservoir of support for these ideas, though not yet by a political majority. I fear that, sooner or later, McCain or some other political entrepreneur will find a way to package this idea in such a way that a majority of the public will come to accept it, thereby greatly eroding what in my view is our already flabby moral resistance to forced labor. I think that there is only about a 20-30% chance that public morality will move strongly in this direction over the next two or three decades. But I find it a far more frightening possibility than either of the other two.

If I am right about these predictions, should I revise any of my current moral views? Hard to say, but here are some tentative thoughts:

I am unmoved in my opposition to forced labor. If this practice is legitimated in the future through the process I predict, its increasing acceptance will say little about its rightness. I am less certain about the death penalty. On balance, I am still for it, but the fact that so many others are turning against it despite the lack of a clear self-interested or other biased reason for doing so does give me some pause. Finally, if I had to pick one of these issues where I am least confident in the validity of my present view, I would have to say animal rights. Even more so than with the death penalty, it is hard to provide an explanation for the increase in support for this moral view that is unrelated to its potential validity. Moreover, unlike in the other two cases, I have to acknowledge that my position is at least in part the result of a strong self-interested bias of my own: I like to eat meat, and I can't think of a logically consistent defense of animal rights that doesn't entail the conclusion that meat-eating is immoral. There is an uncomfortable analogy to slaveowners like Thomas Jefferson, who recognized the strong moral case against slavery, but was reluctant to endorse emancipation because of the way in which he benefited from the institution. I'm not ready to endorse animal rights (at least not yet), but I have to acknowledge the possibility that my love of cheeseburgers is undermining my love of truth on this issue.

Whether or not I'm right in my speculations on these three issues, Hal Finney is surely right to suggest that we should give more thought to the possibility that some of our beliefs will be rejected in the future just as resoundingly as we reject many of the moral views of the past.


Four Models of Fourth Amendment Protection: I recently posted a new draft article, Four Models of Fourth Amendment Protection, forthcoming in the Stanford Law Review. I've mentioned this article a few times here when blogging about the Fourth Amendment, but I haven't posted a copy online until now.

  Here is the abstract:
The Fourth Amendment protects reasonable expectations of privacy, but the Supreme Court has repeatedly refused to provide a consistent explanation for what makes an expectation of privacy "reasonable." The Court’s refusal has disappointed scholars and frustrated students for four decades. This article explains why the Supreme Court cannot provide an answer. It shows that there are four different tests for what makes an expectation of privacy reasonable, not one, and it argues that the Supreme Court has declined to give a single answer because the "reasonable expectation of privacy" framework is a bottom-up rather than top-down regulatory system. The exclusionary rule requires hundreds and even thousands of narrow rules explaining when an expectation of privacy is reasonable, and the Supreme Court hears too few cases to generate them. The Supreme Court must delegate the process of rule-creation to decentralized lower courts, and the lower courts must announce rules case-by-case. No one top-down approach can regulate this decentralized, bottom-up system, which means that the Supreme Court cannot provide a single answer to what makes an expectation of privacy reasonable. On the other hand, the existing four models reflect the needs of the bottom-up system far better than any single test. The four models provide the tools lower courts need to create localized Fourth Amendment rules that accurately identify reasonable police practices.
  I may do some blogging about the article over the next few days, too. If there are particular aspects about the article that you'd like me to address, please let me know in the comment thread.

  UPDATE: Of course it so happens that after inviting comments I accidentally turned off the comment thread. (I think it happened because I saved the post for a week or so while the paper was being finished, and I think saving it turned the comments off.) Anyway, comments are now open.

Goodling To Take the Fifth: The Associated Press reports:
  Monica Goodling, a senior Justice Department official involved in the firings of federal prosecutors, will refuse to answer questions at upcoming Senate hearings, citing Fifth Amendment protection against self-incrimination, her lawyer said Monday.
  "The potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real," said the lawyer, John Dowd.
  "One need look no further than the recent circumstances and proceedings involving Lewis Libby," he said, a reference to the recent conviction of Vice President Dick Cheney's former chief of staff in the CIA leak case.
  I'm not sure I follow the rationale here. The Fifth Amendment privilege is available if the witness has reasonable ground to believe that her testimony will be used against her to prove an element of a crime. Brown v. Walker, 161 U.S. 591, 598 (1896). What crime might Goodling have committed? I'm also puzzled by the comparison to the Libby case. Libby was prosecuted and convicted because he lied under oath, not because he admitted to criminal activity. Is Goodling taking the Fifth because if she testifies under oath she would lie and face perjury charges rather than tell the truth? If so, that's not a valid basis for the privilege. See, e.g,, United States v. Seewald, 450 F.2d 1159 (2d Cir. 1971). Or perhaps she is taking the Fifth because she lied before, and her testifying truthfully this time will reveal her earlier lies?

  UPDATE: According to the first page of the letter Goodling's counsel sent to the Senate, the rationale for taking the Fifth seems to be that Congress isn't being very open-minded and Democrats don't trust the Bush Administration. That's a new one; I don't think I've ever come across that one before. (Maybe there is more on the other pages of the letter not yet available?)

  ANOTHER UPDATE: A few courts have discussed the theoretical possibility that there is some kind of "perjury trap" defense that might apply when a witness is hauled before a tribunal just to see if the witness can be tricked into comitting perjury. Courts have hinted that setting such a perjury trap might violate the Due Process clause. However, I don't think any court has ever actually found a perjury trap; courts invariably find a government interest that allows the testimony, and generally do not need to reach whether such a defense exists. See, e.g., Wheel v. Robinson, 34 F.3d 60, 67-68 (2d Cir. 1994). Perhaps that's what Goodling's lawyer has in mind?

  YET ANOTHER UPDATE: The link to the letter now includes the entire letter, which in turn relies heavily on Ohio v Reiner. I don't see how Reiner is helpful. That case just says that a person can both claim that they are innocent of any offense and yet also claim the Fifth Amendment privilege. Well of course; a person can say whataver they want about their culpability without changing whether they have a privilege. But the Fifth Amendment issue is whether a person has substantial reason to fear that their truthful testimony will help lead to them being prosecuted. Goodling's letter doesn't give a legally valid reason for that fear, at least as far as I can tell.

  On the other hand, this may just be a way of slowing Congress down. I gather that Congress's main option would be to seek contempt sanctions:
Section 192 of Title 2 of the United States Code provides that a subpoenaed witness who refuses "to produce papers upon any matter under inquiry before either House ... or any committee of either House of Congress", shall be guilty of a misdemeanor "punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months." Once an individual has been found in contempt by either House of Congress, a contempt order is presented to the President of the Senate or the Speaker of the House of Representatives for certification. 2 U.S.C. § 194. The President or Speaker in turn delivers the contempt citation to the appropriate United States Attorney. The United States Attorney is then required to bring the matter before the grand jury. Id.
United States v. House of Representatives, 556 F.Supp. 150, 152 (D.D.C. 1983).

Supreme Court Agrees to Hear Pandering Child Pornography Case: Today the Supreme Court agreed to hear a constitutional challenge to a provision of the 2003 PROTECT Act that prohibits presenting or promoting material designed to create the belief that the material is child pornography. The PROTECT Act added this provision in response to the Supreme Court's 2002 decision in Ashcroft v. Free Speech Coalition; that decision had invalidated a broader version of the crime on First Amendment grounds. The Eleventh Circuit struck down the 2003 provision on the ground that it was too close to the law struck down in Free Speech Coalition. The cert petition and lower court opinion are here, via SCOTUSblog. For what it's worth, I don't think this particular cert grant is an indicator of the merits: the Supreme Court usually grants review when a court of appeals has struck down a federal statute.

Phony Experts:

I'm working on a project about phony experts, which I loosely define as purported experts who can't do what they claim to be able to do, or whose claimed expertise is nonsensical or non-credible. I would welcome reader suggestions regarding categories of experts to look into. Here are some examples I've been toying with: (1) Homeopaths; (2) Economic forecasters; (3) Creationists; (4) Psychiatrists who claim to be able to judge "future dangerousness"; and (5) Clinical ecologists.

I'm not looking for Holocaust deniers, Flat Earthers, or any other group that's not taken seriously by the American public, but categories of experts (or even individuals--Deepak Chopra?) whose views are quoted in the media (Discovery Institute creationists), who testify as experts in court (future dangerousness prognosticators), whose services are paid for by companies (economic forecasters), or whose products and services many individuals buy (homeopathic "medicine").

Please post suggestions below, or email me at deliotb at aol dot com.


The Scholar as Judge:

And here I mean The Scholar. From Albert W. Alschuler's Rediscovering Blackstone, 145 U. Pa. L. Rev. 1 (1996):

[In 1758,] Blackstone became the first Vinerian Professor of the English Common Law. He inaugurated his professorship by arguing against the traditional view that the Roman legal system was the only one worthy of university study. Before leaving his professorship eight years later, Blackstone began to publish his lectures. The four volumes of his Commentaries appeared between 1765 and 1769....

Before 1900, almost every American lawyer read at least part of Blackstone. Daniel Boorstin has observed, "In the history of American institutions, no other book -- except the Bible -- has played so great a role ...." As Mary Ann Glendon has noted, "Blackstone's work was much more fully absorbed into legal thinking here than in England, where legal resources were both more diverse and more readily available." Describing Blackstone's treatise as "the law book" during America's formative period, Glendon added, "It would be hard to exaggerate the degree of esteem in which ... the Commentaries were held."

And yet,

Although Blackstone was noted for his Commentaries during his lifetime, he was otherwise an undistinguished lawyer, politician and judge. He abandoned his law practice for an academic life partly "because the profits from his profession were less than his expenses." As a judge, his rulings on circuit were set aside more frequently than those of any other judge of the courts in London.


[Paul Horwitz (guest-blogging), March 26, 2007 at 11:00am] Trackbacks
On Religious Tests and Judicial Nominations:

Thanks for much to Eugene and the gang for inviting me to discuss my recent paper, Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations. (The link is to the SSRN version; the final version is available on the usual law review databases.) I've already benefited immensely from the comments to Eugene's introduction, and hope I can enjoy further discussion with the vast universe of VC readers out there. I might add that this project started out as a series of posts on my usual place of bloggage, Prawfsblawg.

It might be appropriately modest to start with what a commenter has already observed: "I never cease to be amazed at how big legal-academic reputations can be built on restating the obvious." Well, I'm honored to be counted -- for the first time, I'm pretty sure -- as having a "big legal-academic reputation." (I thought I was just known as that puckish, handsome devil with a one-day win record on Jeopardy!) But of course the commenter has said something perfectly true about much legal scholarship; indeed, I'd be remiss if I didn't add that my own article builds on a superb piece by my current Notre Dame colleague, Gerard Bradley, whose article (at 37 Case W. L. Rev. 647 (1986-87)) is essential reading. I, too, think there is a touch of the obvious to the historical aspect of my discussion, although I hope I've extended the discussion beyond that in useful ways. But assuming the obviousness of my conclusions for the sake of argument, two interesting questions arise: 1) If my conclusions are "obvious," why did so many intelligent people reach the opposite conclusion in the course of debates over a variety of recent judicial nominations, including those of Judge Pryor and Chief Justice Roberts and the abortive nomination of Harriet Miers? 2) Why does my conclusion continue to provoke such fierce reactions, from both sides of the usual left-right or religious-secular divides? Why is the "obvious," if that's what it is, so threatening?

That's what I hope eventually to discuss this week. Today, I'll simply offer some introductory (and lengthy; forgive me) remarks on my conclusions about the history and meaning of the Religious Test Clause. Subsequently, I'll argue that broader reasons support this conclusion as well; and, having concluded that the Constitution leaves us with relatively few restrictions in this area, I'll offer some ways we might construct our own standards for judging public rhetoric involving religion in the course of debating judicial nominations -- and perhaps far beyond that. In the course of responding to comments, I hope to also offer some thoughts on the implications of these questions for the treatment of religion in public debate, and more broadly on the ways in which the Constitution is used and misused in public dialogue.

So let me offer a bite-sized version of my historical conclusions. The Religious Test Clause is a part of Article VI of the Constitution. After requiring all state and federal office-holders to take an "Oath or Affirmation, to support this Constitution," it adds: "but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." (Note that the Test Clause, unlike the Oath Clause, appears to apply only to federal office-holders.) What does this clause mean? Especially in light of the recent judicial nomination controversies, what does it forbid and what does it allow?

In looking at the history, I've drawn on what I consider four central elements of that history. The first is that the framers and ratifiers of the Religious Test Clause had a specific historical evil in mind when they crafted the Clause: that set of formally imposed oaths and very closely allied practices that were used to restrict office-holders in England to those willing to follow the doctrines of the established church. Second, we must consider the enforcement device by which these tests were imposed: the swearing of an oath, a device by which an individual risked his eternal soul or earthly honor should he swear falsely. The importance with which the members of the founding generation took oaths and the importance of their honor cannot be overstated. Well, okay, technically it can; but it shouldn't be lightly understated. The fact that our own generation may take such things as oaths and honor less seriously may point to the relatively reduced importance of the Test Clause today, but it should not obscure the very different perception that earlier generations would have had about the importance of such matters.

Third, and as some commenters have already noted, despite the framers' and ratifiers' willingness to ban religious tests at the federal level, such tests were rife at the state level, before, during, and after the ratification of the Religious Test Clause. We might read that fact as having purely jurisdictional significance: the ratifiers were willing to see such a test at the federal level but not the state level. But I think it also adds to our understanding of the federal clause. It makes us understand just how revolutionary the federal clause was (a point several commenters have already recognized), and that may lead us to favor a somewhat narrow meaning for the clause. We might be more inclined to read the Clause as focusing more specifically and narrowly on the kinds of historical evils it was aimed against, rather than lightly assuming that, to quote Laurence Tribe, the framers and ratifiers were moving to "prioritize[] the secular over the religious in the [federal] public realm." Finally and relatedly, I point to the fact that, as the historical record makes clear, notwithstanding the Clause, the founding generation widely agreed that moral character was highly relevant to the holding of federal public office -- and for many or most of these individuals, moral character was largely synonymous with religious character. Whatever else they may have meant by the Clause, it is not likely they thought that those who nominated and approved such office-holders were required to treat religion as a forbidden or irrelevant factor.

What conclusion do I draw from all these factors, read together as holistically and as reasonably as I can? It is that the Religious Test Clause is, to use a phrase of Cass Sunstein's, "deep but narrow." It bars the formal imposition of formal test oaths (and, perhaps, some other formal tests) that would restrict putative federal office-holders on the basis of their religion. And it does nothing more -- although to put it that way may lead readers today to ignore just how important and radical even this step was.

So, to end today's post on what I hope is a provocative note, the Religious Test Clause imposes virtually no restrictions on the kind of conduct we saw during the recent debates over particular judicial nominees -- or, what is perhaps more important, on the kind of conduct we will likely see with respect to future nominees. On a constitutional level, the individual members of the Senate were free, if they chose, to question Bill Pryor, John Roberts, and others on their "deeply held views" -- and would have been equally entitled to question them directly, and hostilely (or approvingly), on their religious views. They would similarly have been entitled to vote against these nominees if they were concerned about the relationship between their religious views and their future conduct in judicial office -- or, indeed, to vote against them (or for them!) more directly on the basis of their religious views. And if President Bush promoted Harriet Miers on the basis of her religion -- indeed, if he chose her precisely because of her religion, and perforce disqualified other nominees because of theirs -- then he did nothing wrong, constitutionally speaking. I am not saying any of this conduct would be morally or politically right, although it is not clear to me that all of this conduct would necessarily be wrong. I am saying it was utterly constitutional, at least as far as Article VI. The writ of the Religious Test Clause simply does not run this far.


See No Earmarks:

Congress is under significant political pressure to reduce earmarks in appropriations legislation. Profligate spending and excessive earmaking cost Republicans in the 2006 election. Reforms have been promised, but there's been very little follow through. Indeed, the new Congressional appropriators are conspiring to keep earmarks in but hide them from the public. For years, the Congressional Research Service (CRS) tallied earmarks in pending legislation, but no more, as John Fund reports.

Democrats promised reform and instituted "a moratorium" on all earmarks until the system was cleaned up. Now the appropriations committees are privately accepting pork-barrel requests again. But curiously, the scorekeeper on earmarks, the Library of Congress's Congressional Research Service (CRS)--a publicly funded, nonpartisan federal agency--has suddenly announced it will no longer respond to requests from members of Congress on the size, number or background of earmarks. . . .

Indeed, the shift in CRS policy represents a dramatic break with its 12-year practice of supplying members with earmark data. "CRS will no longer identify earmarks for individual programs, activities, entities, or individuals," stated a private Feb. 22 directive from CRS Director Daniel Mulhollan.

The reason? The appropriations committees are going to identify the earmarks themselves. Of course, as Fund reports, their definition of earmarks is a little bit more flexible. For instance, when challenged about one item in a recent appropriations bill, House committee Chair David Obey explained to a colleague: "The fact is, that an earmark is something that is requested by an individual member. This item was not requested by any individual member. It was put in the bill by me!" We should expect to see many more of Rep. Obey's projects lining appropriations bills in the future. Let the pork-barrel spending resume! [Link via Instapundit)


Slow-Going This Term:

The Washington Post reports that the Supreme Court is issuing opinions at a fairly slow pace this term. It has only issued 23 decisions in argued cases thus far.


A Legal Blogging Job Opportunity:

My law school classmate David Lat, impresario of the Above the Law blog, is looking for someone to take over writing his popular Legal Eagle Wedding Watch column. I don't know about the pay and benefits, but it will certainly give the lucky winner a great deal of exposure for his or her writing. An opportunity that aspiring legal gossip columnists cannot afford to miss!:).


Sunday, March 25, 2007

An Important Bicentennial:

Two hundred years ago today, British Parliament passed An Act for the Abolition of the Slave Trade. Roger Alford has the details at Opinio Juris.


The Harms of Grade Inflation:

Mark Graber explains why professors who inflate their students grades aren't doing them any favors.


Sunday Song Lyric: Bloc Party completely won me over with their 2005 debut album, Silent Alarm. Think of the Buzzcocks with a Bauhaus sensibility and touch of When in Rome. The album was a commercial success and did well across the Atlantic, but never really caught on here.

Bloc Party's second album, A Weekend in the City, is out now, and I'm digging it as well. It draws on a broader range of influences. Here are the opening lines to "Uniform," one of my favorite tracks on the new album.

There was a sense of disappointment as we left the mall
All the young people looked the same
Wearing their masks of cool and disinterest
Commerce dressed up as rebellion

Because we are so handsome and we are so bored
So entertain us, tell me a joke
Make it long, make it last forever
Make it cruel just make me laugh
We can't be hurt
The full lyrics to this and other Bloc Party songs are available here.

UPDATE: As initially posted, I called the new album by the name of the new single, "I Still Remember." It's now been corrected.